INTRODUCTION
The most necessary element for committing a crime of statutory offence under Section seven of Protection of Children from Sexual Offences (POCSO) Act is that the “sexual intent”, and not the “skin-to-skin” contact with the child”, the SC aforesaid on Thursday whereas quashing 2 judgments of the Nagpur bench of Bombay high court.[1] The two High Court judgments had set out a furor for last that it’ll not amount to a Crime of statutory offence under Section seven of Protection of Children from Sexual Offences (POSCO) if there’s “no direct physical contact, i.e. skin to skin” between the suspect and therefore the victtim.
On 18 November 2021, the Supreme Court bench of Justices U U Lalit, S Ravindra Bhatt, and Bela M Trivedi look into the dictionary that means of the words “touch” and “physical contact” and same that “touch” has been used specifically with elements sexual components of the body, whereas the word “physical contact” has been used for the other act. Therefore, the court ruled that, the “act of touching the sexual part of the body or the other act involving physical contact, if done with ‘sexual intent’, would amount to ‘sexual assault’ inside that means of Section seven of POCSO Act”. Writing for Justice Lalit and herself, Justice Trivedi delivered the argument that the expression ‘physical contact’ utilized under Section seven needs to be construed as ‘skin-to-skin’ contact “cannot be accepted”.[2]
The ruling acknowledged that “the construction of a rule ought to offer effect to the rule instead of destroying it”, and “any narrow and pedantic interpretation of the provision, which might defeat the item of the provision, cannot be accepted”. The bench aforementioned that “where the intention of the law-makers cannot be given result to, courts would accept the bolder construction for the purpose of delivery concerning a good result. proscribing the interpretation of the words ‘touch’ or ‘physical contact’ to ‘skin-to-skin contact’ wouldn’t only be a slender and pedantic interpretation of the provision contained in Section 7…but it might result in an absurd interpretation of the aforesaid provision.”[3]
The court is aforementioned that “skin-to-skin contact” for constituting an offence of “sexual assault” couldn’t be supposed or contemplated by the law-makers. “The terrible object of enacting the POCSO Act is to guard kids against sexual assault, and if such a slim interpretation is accepted, it might cause an awfully prejudicial scenario, frustrating the terrible object of the Act, inasmuch as therein case touching sexual or non-sexual elements of the body of a toddler with gloves, condoms, sheets or with fabric, though’ finished sexual intent, wouldn’t quantity to Associate in Nursing offence of regulatory offence under Section seven of POCSO Act,” the bench same. “The most vital ingredient for constituting the offence of regulatory offence below Section seven of the Act is that the ‘sexual intent’ and not the ‘skin to skin’ contact with the child”. [4]
The bench dominated that “the act of touching any sexual a part of the body of a toddler with sexual intent or the other act involving physical contact with sexual intent couldn’t be trivialized or control insignificant or peripheral therefore on exclude such act from the horizon of ‘sexual assault’ under Section 7”. Writing a separate accordant judgment, Justice Bhatt same that “the fallacy…in the High Court’s reasoning is that it assumes indirect bit isn’t lined by Section seven or in alternative words isn’t any ‘touch’ in the slightest degree. That provision covers and is supposed to hide each direct and indirect bit.”
He stated, “The receptors on the surface of physique square measure acutely sensitive to the subtleties of an entire vary of tactile experiences. The utilization of a spoon, for example, to consume food while not biting it with the hand in no manner diminishes the sense of touch fully fledged by the lips and therefore the mouth. Similarly, once a stick or alternative object is ironed onto an individual, even once clothed, their sense of bit is keen enough to feel it.”[5]
Justice Bhatt additional, “Therefore, the reasoning within the High Court’s judgment quite insensitively trivializes so legitimizes a whole vary of unacceptable behavior that undermines a child’s dignity and autonomy, through unwanted intrusions.” The Supreme Court ruling came on 4 appeals by the professional General for India, the National Commission for women, the State of Maharashtra, and by the defendant in one in all the cases and therefore the State of Maharashtra within the alternative case.[6]
In one in all the cases, a special court in Nagpur had on November five, 2020 guilty and sentenced defendant Satish for Crime under Sections 342, 354, and 363 of Indian Penal Code and Section eight of Protection of Children from Sexual Offences( POCSO) . On appeal, the High Court on Robert E Lee’s Birthday, 2021, innocent him for the offence below Section eight of Protection of Children from Sexual Offences (POCSO) Act, stating that “there isn’t any direct physical contact i.e. skin to skin with sexual intent while not penetration”.
The High Court found him guilty for the Crime under IPC Sections 342 and 354. In the alternative matter, the special court in Gadchiroli guilty and sentenced defendant Libnus the offences punishable under IPC Section 448 and 354-A (1) (i) and Sections eight and ten read with Sections 9(m) and twelve of Protection of Children from Sexual Offences(POCSO) on Oct five, 2020. On appeal, the HC, on January fifteen, 2021, maintained his conviction under Sections 448 and 354-A(1)(i) of Indian Penal Code read with Section twelve of Protection of Children from Sexual Offences(POCSO) Act however put aside his conviction under Sections eight and ten of Protection of Children from Sexual Offences(POCSO) Act. The High Court same that “the acts of ‘holding the hands of the prosecutrix’ or ‘opened the zip of the pant’…in the opinion of this Court, doesn’t slot in the definition of ‘sexual assault’.”
CONCLUSION
So from the aforesaid judgment, it is clear that there must be skin-to-skin contact in the way to form or name it as sexual assault. If there is only sexual intent then it cannot be termed as sexual assault by a person. Merely opening of one’s pant zip doesn’t amount to sexual assault it may be said to have the sexual intention but not sexual assault.
Author’s Name: Harshit Kumar (Central University of South Bihar)
[1] https://indianexpress.com/article/india/supreme-court-skin-to-skin-contact-bombay-high-court-pocso-7628888
[2] https://www.livelaw.in/top-stories/sec-7-pocso-main-ingredient-of-offence-of-sexual-assault-is-sexual-intent-and-not-skin-to-skin-contact-supreme-court-185840b
[3] https://economictimes.indiatimes.com/
[4] https://www.thehindu.com/news/national/skin-to-skin-touch-with-sexual-intent-amounts-to-assault-under-pocso-holds-supreme-court/article37555081.ece
[5] https://www.livelaw.in/top-stories/sec-7-pocso-main-ingredient-of-offence-of-sexual-assault-is-sexual-intent-and-not-skin-to-skin-contact-supreme-court-185840
[6] https://www.hindustantimes.com/india-news/sc-sets-aside-bombay-hc-ruling-that-held-skin-to-skin-contact-key-for-sexual-assault-101637214891216.html
