Skin-to-skin: Definition of sexual assault in POCSO must be looked from victim's perspective, says SC

The provision defining the offence of sexual assault against children under the POCSO Act must be looked at from the ldquovictims perspectiverdquo and if the ldquosexual intentrdquo is present then the offence is made out even without skintoskin contact the Supreme Court Thursday orally observedA bench headed by Justice U U Lalit stressed on the intent to commit the sexual offence and said the results would be ldquodisastrousrdquo if the term ldquophysical contactrdquo in the provision is interpreted in a way where the skintoskin contact becomes necessary for constituting the offenceThe top court reserved its verdict on two appeals filed against the Bombay High Court verdict which had come under intense scrutiny and had held that no offence of sexual assault under the Protection of Children from Sexual Offences POCSO Act is made out if there is no direct iquestskintoskin contact between accused and the victimAlso read Man with surgical gloves can feel entire body yet get away with punishment AG slams Bombay HCrsquos judgmentThe bench also comprising Justices S Ravindra Bhat and Bela M Trivedi discussed threadbare the definition of section 7 of the POCSO Act which deals with the offence of sexual assault against the childrenThe provision says ldquoWhoever with sexual intent touches the vagina penis anus or breast of the child or makes the child touch the vagina penis anus or breast of such person or any other person or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assaultrdquoldquoSo therefore the primary thing is that if the sexual intent is proved then everything will fall in placerdquo the bench orally observed while expressing its reservation on the interpretation made by the high courtSenior advocate Siddhath Luthra appearing for the convict in the case as an amicus curiae referred to the contents of the provision and said that there were issues with the first part of the provision which said if an accused with sexual intent ldquotouches the vagina penis anus or breast of the child or makes the child touch the vagina penis anus or breast of such person or any other person then the offence of sexual assault is made outrdquoHowever the second part of the provision said that for constituting the offence of sexual assault an accused has to commit an act ldquowhich involves physical contact without penetrationrdquo and here the ldquoskintoskinrdquo interpretation creeps inLuthra said the second part ldquorequires sensitive interpretationrdquoOne must rely on different situations to see whether a given interpretation logically holds and when an offence has been clearly laid down then if there was any need to stretch ones reasoning and rely on other provisions the bench saidldquoOne must look at things from the victims perspective If a pen is used to poke a person there is no skintoskin touch and according to arguments advanced there is no sexual assault But there is an invasion of privacy and violation of modesty of the childrdquo it saidIf we accept the submission on physical contact without cloth what kind of results will we get According to us the results will be disastrousrdquo it observedLuthra said the legislature consciously used the term physical act in the second part of the provisionSo do we understand your submission that the first part skin to skin need not be there According to you in the second part skin to skin contact is essential the bench askedAnother amicus curiae Siddhart Dave and others argued in the case and the counsel for Maharashtra adopted the submissions of Attorney General K K Venugopal who had vehemently argued for the setting aside of the verdict by the Nagpur bench of the Bombay High CourtWhile reserving the verdict the bench asked parties to file their written submissions within three daysVenugopal had earlier told the apex court that the controversial verdict of the Bombay High Court would set a dangerous and outrageous precedent and needed to be reversedThe top court which was hearing separate appeals of Attorney General and the National Commission for Women NCW had on January 27 stayed the order which had acquitted a man under the Protection of Children from Sexual Offences POCSO Act saying ldquogroping a minors breast without skin to skin contact cannot be termed as sexual assaultrdquoTwo judgments were passed by Justice Pushpa Ganediwala of Bombay High Court Nagpur BenchEarlier while staying the judgements the top court had also issued notice to the Maharashtra government and permitted the Attorney General to file an appeal against the verdictThe verdict had said groping a minors breast without skintoskin contact cannot be termed as sexual assault as defined under the POCSO ActIt had said since the man groped the child without removing her clothes the offence cannot be termed as sexual assault but it does constitute the offence of outraging a womans modesty under IPC section 354The high court had modified the order of a sessions court which had sentenced a 39yearold man to three years of imprisonment for sexually assaulting a 12yearold girlThe verdict had held that mere groping will not fall under the definition of sexual assault As per the prosecution and the minor victims testimony in court in December 2016 the accused one Satish had taken the girl to his house in Nagpur on the pretext of giving her something to eatOnce there he gripped her breast and attempted to remove her clothes the high court had recorded in her verdictThis story has been sourced from a third party syndicated feed agencies Midday accepts no responsibility or liability for its dependability trustworthiness reliability and data of the text Midday managementmiddaycom reserves the sole right to alter delete or remove without notice the content in its absolute discretion for any reason whatsoever