Sexual assault
Section 7 of the POCSO Act defines sexual assault as, “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”.
Attorney General for India Vs Satish & Another SLP2286/2021 SUPREME COURT
Facts
The facts pertained to a man who had lured a minor girl aged 12 into his house on the pretext of giving her guava and subsequently engaged in groping her and pressing her body parts from over her clothes while further attempting to remover her clothes.
Issue
Whether the accused is liable to be punished under both the POCSO Act (Section 8) and IPC (Section 354, 342 and 363 )?
Decision
The Special court found the appellant guilty and sentenced him to three years imprisonment for the offenses that are punishable under both the POCSO Act (Section 8 ) of the POCSO Act and Section 354, 342, 363 of the IPC .
High Court
It was held by the High Court that because the groping that has been done by the appellant , was through the minor’s clothes and there was no skin-to skin contact, it does not fall under the definition of ‘ Sexual harassment in the POCSO Act under Section 7 and hence the appellant will not be punished as per POCSO Act but only as per the Section 354 IPC, that talks about the outraging of women’s modesty, and at the same time also reduced the sentence of the appellant.
This judgment was setting a very dangerous precedent, and at the same time, it gave a very narrow interpretation to the definition of sexual assault , under the POCSO Act, by stating that, for any offense to fall under the category of sexual assault in this act, there must exist a skin- to- skin contact with the victim, this interpretation has been the very reason why this judgment received such serious backlash from the activists of child rights civil rights civil society members. They stated that this decision given by the High Court is unacceptable and obnoxious at the same time. It was also said that this judgment is especially flawed because it deals with children, who on many occasions can’t protect their selves.
Supreme Court
Supreme Court of India overruled the judgment given by the Bombay High Court, and referred to the dictionary, meaning of the terms ‘ physical’ , ‘contact’ and ‘touch’ which means of or relating to the body, the condition or state of touching , or the act of touching, and the sense that enables one to be aware of things and what it is like when you put your hands and fingers on them respectively.
Hence, the court held “ that after taking into consideration the meaning of physical contact and touch, both have been used interchangeably by the legislature under Section 7, hence, ‘ the act of touching the sexual part of the body or any other act involving physical contact, if done with sexual intent would amount to sexual assault within the meaning of Section 7 of POCSO Act 2012.
Justice Bhat , although completely agreeing with the judgment given by the other justices in the case, briefly separated his opinion and agree with the judgment given by the Bombay High Court, he said that “the interpretation of Section 7 of the POCSO Act by the High Court would not merely limit the operation of the law but tend to subvert its intention”.
He further observed, “ It is no part of any judge’s duty to strain the plain word of a statue, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity , as POCSO does.
As per view, the flaw in the reasoning of the High Court was that it assumed that Section 7 of the Protection of Children from Sexual Offences Act , 2012 does not cover the concept of indirect touch in it or it can also be said that it assumed that the indirect touch is no touch at all. While clarifying this reasoning he said that this section of the Act ‘is meant to cover and covers both kinds of touch the direct one as well as the indirect one’
The court also stated that “the reason behind the judgment of the High Court does legitimize, but insensitively trivializes an entire amount of unacceptable behavior which then undermines the autonomy and dignity of the child, by the way of unwanted intrusions.
This judgment of the Supreme Court was a unanimous one, and the court in clear words said that for an offense to fall under the category of sexual assault under Section 7 and 8 of the POCSO Act, the existence of sexual intent behind such action is necessary and not skin-to-skin touch.
Subhankar Sarkar vs State Of West Bengal on 1 April, 2015HIGH COURT AT CALCUTTA
On medical examination of the victim, it was found that there was no evidence of penetrative sexual assault but scratch marks on the body of the victim were found which proved the use of force and thus, the accused was convicted under Section 8 and 12 of the POCSO Act.
Written by Adv Rohit Yadav D/8639/2019
If some one wants to be updated with latest technologies after that he must be go to see this site and be up to date all the time.