Explainer: Interpreting sexual assault: High Courts err because they place a high evidentiary burden on the victims | Part II

On the day of the Supreme Court judgment setting aside the "skin-to-skin" interpretation of sexual assault by the Bombay High Court, the Allahabad High Court also gave a glaringly erring order under the Protection of Children from Sexual Offences Act, 2012. Amidst the two, SHWETA VELAYUDHAN and ALMAS SHAIKH examine the interpretations by other High Courts of sexual assault under Section 7, with a special focus on other POCSO decisions by the Judge who authored the skin-to-skin interpretation. The first part of the Explainer series is available here.

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How do other cases interpret Section 7 of the POCSO Act?

The Delhi High Court in Jitender v. State (2020) held that touching the breast of a child victim constituted sexual assault under Section 7, punishable under Section 8 of the POCSO Act. The counsel on behalf of the accused, in this case, submitted that the prosecutrix's statement contained a discrepancy since at first, she deposed that the accused "touched her chest" and later, it was changed to "pressed her chest". 
The Trial Court had found the testimonies of the prosecutrix to be consistent and corroborated them with the statement of the prosecutrix's mother, examined as PW-2. The Trial Court had relied on another judgment under the POCSO Act, in Narender Kumar v. State (NCT of Delhi) (2012), wherein the Supreme Court had held that,
"It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case."
Relying on the position in Narender Kumar and the observations of the Trial Court, the Delhi High Court in Jitender found the contention of the counsel for the accused, that the evidence of the prosecutrix is not reliable because "the version of the prosecutrix has changed from touching her chest to pressing her chest", to be not sustainable. 
Most importantly, the Delhi High Court further went on to note that, even if the contention was to be accepted, it would make no difference because the accused had been convicted of the offence under section 8 and sexual assault, under section 7, inter alia, uses the expression "with sexual intent touches….". The High Court upheld the conviction by holding that, "Whether the appellant had touched or pressed her breast, the offence would be complete."
In Dulal Dhar v. State of Tripura (2015), the prosecutrix was a 16-year-old girl, and the complained act was of grabbing her, forcibly kissing her, and trying to undress her. The judgment noted that touching of the named parts were physical acts with sexual intent. The Court remarked that "The legislature in its wisdom has used very wide language which states that "does any other act with sexual intent which involves physical contact". Kissing is something which involves physical contact and is done with sexual intent. Pulling the girl's uniform to undress her is something which involves physical contact and has sexual connotations." Both were held to squarely fall within sexual assault under section 7.

What are the other rulings under the POCSO Act by Justice Ganediwala?

Justice Pushpa V. Ganediwala, who authored the skin-to-skin judgment by the Bombay High Court, started her legal career by practicing in the Amravati District Court. Since then, she has been directly appointed as a District Judge in 2007, and has held various offices such as at the City Civil Court, Mumbai; District Court and Family Court at Nagpur; Joint Director of Maharashtra Judicial Academy (MJA); Principal District & Sessions Judge, Nagpur; Registrar General, High Court of Judicature at Bombay and also Principal Judge at City Civil Court, Mumbai. On February 13, 2019, she was elevated as Additional Judge of the Bombay High Court.
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Since 2019, Justice Ganediwala has been part of 6 judgments under the POCSO Act until January 2021. The judgment of the Nagpur Bench of the Bombay High Court, giving a narrow interpretation of the POCSO Act is not the only such case. 
The other decisions by Justice Ganediwala (either alone or as part of a Division bench) also give a narrow interpretation of the POCSO Act and place a high level of burden on the testimony of the victim. The judgments can be classified into 3 categories based on the ratio –  First, quashing FIRs based on the complainant's statement; second, the high evidentiary burden on the prosecutrix's statement; and third, the narrow interpretation of the POCSO Act.

Quashing FIRs based on prima facie statement

On March 18, 2019, in Pratima Anil Lute v. State of Maharashtra (2019), an FIR was filed under Sections 377 and 498-A of the IPC, and section 8 of the POCSO Act. The allegation was that Applicant No. 2, who was the father of the seven-year-old boy, sexually abused his son. 
In the judgment, it was recorded that the FIR was filed as part of a marital discord. The mother, who filed the complaint, stated in court that there was some misunderstanding on her part, and thus she, along with the accused, had filed the application praying to quash the FIR. In the judgment, it was held that the Bench was satisfied that the dispute, till yesterday in the arena of public law, had traveled to the field of private dispute and hence, the FIR was quashed.
Similarly, in Rizwan Khan Rahim Khan v. State of Maharashtra & Ors. (2019), an FIR was filed under Sections 354-A, 452, 323, and 506 of the IPC read with Section 12 of the POCSO Act. 
The allegation was that the accused entered the house of the prosecutrix while she was alone in the house and forcibly held her hands and tried to drag her. This FIR too, was quashed as the prosecutrix stated that "they have amicably settled the matter and in order to have a peaceful atmosphere and harmonious relationship amongst the neighbours, she does not want to proceed with the case". 
The Bench, noting that there are 'remote' and 'minimal chances of conviction', came to the conclusion that no purpose would be served to proceed against the accused. Hence, this FIR too was quashed and set aside. In fact, the Bench imposed costs on the accused and the applicant amounting to INR 10,000/- each to be deposited to the Home of Aged, Untkhana, Medical College Road, Nagpur.

A high evidentiary burden on the prosecutrix's statement

While the above orders placed a prima facie reliance on the words of the complainant/ prosecutrix and no other inquiry was made, a similar standard was not allowed in the next two judgments. 
In Pradip v. State of Maharashtra (2020), an appeal was made against the conviction of the accused under Section 376-D of the IPC and Section 6 of the POCSO Act. In this case, according to the prosecution, a 12-13-year-old girl, belonging to the Scheduled Tribes community, was raped by the accused along with one other person on the pretext of dropping her home from Aheri village where she sold blueberries. 
Although an FIR was filed under the IPC, the POCSO Act, and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act), the learned Trial Court judge acquitted the accused persons under the Atrocities Act. The defence taken up was that the evidence of the victim was untrustworthy. 
The Bench noted that under such cases, the solitary testimony of the victim is sufficient to record the finding of guilt. However, it went on to hold that while there is no hesitation that there was sexual assault of the victim, there is no proof beyond reasonable doubt that the accused were the perpetrators of the crime. The order held that the evidence of the victim does not inspire confidence, and thus, the accused were acquitted. 

Similarly, in Prakash v. State of Maharashtra (2020), the mother of a then-16-year-old prosecutrix filed a complaint against the accused under Section 363 of the IPC alleging that her daughter has been kidnapped. In accordance with the statement of the prosecutrix, charges under Section 376 of the IPC and Sections 4 and 6 of the POCSO Act were added. 
The prosecutrix clearly stated that the accused (22-23 years of age) maintained physical relations with her (16 years of age) at his elder sister's house, maternal aunt's house, and maternal grandmother's house under the pretext of marriage. The Medical Officer gave the opinion that there was no recent sexual intercourse, however, considering her medical examination, it appears that she is habitual to sexual intercourse. 
The judgment states that the love affair between the accused and the prosecutrix was not disputed and that the only question which needs consideration is with regard to the incident of sexual intercourse between the parties and the age of the prosecutrix if sexual intercourse is proved. The judgment held that apart from the testimony of the prosecutrix, there is no other substantive material evidence. The court held her statement upto high standards of evidentiary value, stating as follows:
"Considering the seriousness of the punishment, in the opinion of this Court, the sole testimony of the prosecutrix should be of sterling quality and with all details with regard to the incident. She states that he maintained physical relations with her wherever he took her while she was with him in Rajasthan. She does not narrate the details of the incident as to how could they got privacy, the presence of other members of the house, how did the other members of the house permitted them, in which room they slept, how many rooms were there in the house so that they could get privacy, at what time they slept, at what time and under what circumstances he committed rape etc."
The Court held that this was not sufficient evidence to implicate a boy of "young age, nourishing his desire to marry with the prosecutrix". The Court held that there was no cinching evidence, and the prosecutrix's statement did not inspire confidence in the Court. Furthermore, the veracity of the birth certificate which showed the girl's age as sixteen was challenged. As such, the Court set aside the order of conviction against the accused and acquitted him of all charges levelled against him. 

Narrow interpretations of the POCSO Act

In the case of Libnus v. State of Maharashtra (2021), the mother had left her two daughters (3 and 5 years of age) at home while she went to work. She came back to see a person in her house holding the hands of her elder daughter, upon which she created a ruckus and shouted at him. 
The Special Court framed charges against the accused for the offences punishable under Sections 354-A(1)(i) and 448 of the IPC and Sections 8, 10 and 12 read with Section 9(m) and 11(i) of the POCSO Act. In addition to her own account of the events, the mother testified that her daughter informed her that the accused removed his penis from the pant and asked her to come to the bed to sleep. She also noticed that the zip of the pant of the appellant/ accused was opened. 

The Court held that the acts of "holding the hands of the prosecutrix", or "opened zip of the pant" as has been alleged, do not fit under the definition of sexual assault. It held that the aforesaid acts are not sufficient for fixing criminal liability on the accused for aggravated sexual assault. At most, the minor offence punishable under Section 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act was held to be proved against the appellant.
The Court thus ordered as follows:
"The conviction of the appellant/accused for the offence punishable under Sections 8 and 10 of the POCSO Act, is quashed and set aside. The conviction of the appellant/accused for the offence punishable under Sections 448 and 354-A(1)(i) of the IPC r/w Section 12 of the POCSO Act is maintained. However, his sentence is modified to the extent he has already undergone."
This, in addition to the Nagpur Bench judgment discussed in part 1, which held that pressing of the breast does not amount to sexual assault, shows a narrow interpretation of the provisions of the POCSO Act. Both were set aside by the Supreme Court in its judgment dated November 18, discussed in part 1. 

What are the consequences of such Orders?

This series of cases by Justice Ganediwala show a different set of standards that allow for the acquittal of the accused. In the first category of cases, the statements of the complainants, when quashing the FIR, were taken at face-value without further inquiry into the reason behind the same. In fact, social factors such as peaceful atmosphere and harmonious relationship amongst the neighbours were taken as a legitimate reason for quashing the petition. Alternatively, in the second category of cases, the statement of the complainant/ victim/ prosecutrix is held to the highest standard of evidence in evoking confidence in the bench to convict the accused. 
In the third category of cases, the orders looked into the simple black letter application of the law, without understanding the need for such a law to be enacted. The Supreme Court rightly held that the interpretation of the words "touch" or "physical contact" as "skin to skin contact" would not only be a narrow and pedantic interpretation of the provision contained in Section 7 but that it would lead to an absurd interpretation of the said provision.
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India's history of judicial undertaking has shown the initiative of judges to understand the social conditions in which such unfortunate events happen. Factors of class, caste, gender, and social hierarchies need to be considered as part of the judgment. Placing a high evidentiary burden on the statement of the victims, who are often children undergoing trauma does not fulfill the objective of the POCSO Act. Neither does the above method of interpretation implement the aim of the statute. In fact, such interpretations will subvert its aim and deter confidence in the judiciary to enforce its provisions. 
(Shweta Velayudhan is a corporate lawyer who consults in the field of labour and employment law, and is a part of the outreach team at The Leaflet. Almas Shaikh is a human rights lawyer from India. She is currently reading for a D.Phil. in Law at the University of Oxford. The views expressed are personal.)