SC stays controversial Bombay HC’s skin-to-skin judgement acquitting accused from a POCSO case

SC stays controversial Bombay HC’s skin-to-skin judgement acquitting accused from a POCSO case

The SC bench comprising of Chief Justice of India SA Bobde had passed the judgement after Attorney General KK Venugopal submitted that the HC judgement was ‘unprecedented’

The Supreme Court of India has stayed the acquittal of an accused in a POCSO (Protection of Children from Sexual Offences Act) case by the Bombay High Court. The HC had clarified that the particular section under POCSO describing sexual assault wouldn’t work, as there was no skin-to-skin contact while defining “physical contact”.

The SC bench comprising of Chief Justice of India SA Bobde had passed the judgement after Attorney General KK Venugopal submitted that the HC judgement was “unprecedented”. He noted that the verdict that “skin-to-skin” contact was necessary for sexual assault is “likely to set a dangerous precedent”. The SC has directed the Attorney General to file a formal petition on the matter.

Moreover, various organisations have come forward against the judgement. The Youth Bar Association of India and three women have moved the SC against the HC judgement, claiming that it would impact the society on a large scale. Earlier, the National Commission of Women had announced that it would challenge the judgement, claiming that it had placed “all women under ridicule”, trivialising legal provisions for the safety and security of women. Meanwhile, the National Commission for Protection of Child Rights asked the Maharashtra government to file an urgent appeal against the HC judgement. The commission emphasised that “the identity of the victim has been disclosed and the commission is of the view that the state should initiate necessary steps”.

The event for the case happened in December 2016, when a man took a minor girl to his home by offering her guava. Once there, he groped her breasts, attempted to remove her salwar, while she tried to escape and screamed for her mother. Soon after, the mother arrived at the place, rescued her child, and filed a case. The police immediately took him in and a lower court handled the case. The prosecution examined the mother, the survivor, a neighbour and two police officers.

The police and the prosecution had argued that the accused had groped the girl’s breasts over her dress, but also added that the man had done so over the salwar and that the girl’s mother had saved her before he could remove the dress. Justice Pushpa Ganediwala of the Bombay HC took this argument to reinterpret the matter, adding that sexual assault couldn’t stand but IPC 354 will. Section 8 of POCSO refers to the punishment of the crime as described in section 7. The latter says, “Whoever, 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 assault.”

The HC observed that it was not the case of the prosecution that the appellant removed her top and pressed her breast. “Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required. The act of pressing the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’.”

The judge added that it would certainly fall within the definition of section 354 of IPC, which says, “Assault or criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, with the intention to outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.”

Various legal experts have argued against the Nagpur Bench’s interpretation of the matter, seeing as how it could have a cascading effect on not only women’s safety but also future POCSO judgement. The two main arguments have been the limitations of 354 IPC and the interpretation of the Bombay HC. The former deals with how the section is only limited to the modesty of a woman and not a male, meaning that it doesn’t protect male children as a gender-neutral POCSO act can do. POCSO’s section 7 mentions, “Whoever, with sexual intent, touches the vagina, penis, anus or breast of the child…” The second argument is the faulty interpretation of “physical contact” mentioned within the section. The judge claimed that physical contact is skin-to-skin, and taking it to its logical conclusion if the accused had used gloves then he couldn’t be convicted u/s 7 of POCSO. Combining the two arguments, we have a different image. If, instead of the girl, it was a male child, and the accused hadn’t made any “skin-to-skin” contact, then neither POCSO section 7 nor IPC 354 could be applied here.

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