Sexual assault cannot be confined to skin-to-skin contact: SC

A three-judge of the Supreme Court comprising Justices U.U. Lalit, S. Ravindra Bhat and Bela Trivedi Thursday disapproved the Bombay High Court's Nagpur bench's interpretation of Section 7 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 that an act that does not involve skin-to-skin contact could not be termed sexual assault.

The bench 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.

The legislature would not have intended or contemplated that for constituting an offence of "sexual assault", "skin to skin contact" would be necessary, the bench ruled.

Writing the judgement for Justice Lalit and herself, Justice Trivedi held that the very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case, touching the sexual or non-sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent, would not amount to an offence of sexual assault under section 7 of the POCSO Act.

"The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the "sexual intent" and not the "skin to skin" contact with the child", penned Justice Trivedi.

The bench was ruling on the batch of appeals filed by the Attorney General for India, the National Commission for Women, and the Maharashtra government challenging the High Court's judgment.

In January this year, acquitting the accused of sexual assault under the POCSO Act, Justice Pushpa V. Ganediwala at Nagpur bench of the High Court said there was no direct physical contact, that is, skin to skin with sexual intent without penetration by the man, who under the pretext of giving the child fruit in his house, pressed her breast and attempted to remove her salwar. She acquitted the accused under POCSO Act, but upheld the conviction of the accused under Section 354 (Assault or use of criminal force to woman with intent to outrage her modesty) of the Indian Penal Code (IPC). She also maintained the sentence of the accused under Section 342 (Punishment for wrongful confinement) of the IPC, that is, six months imprisonment and a fine of Rs. 500.

Describing the judgment as "disturbing", the Attorney General, K.K. Venugopal  had mentioned the matter – a day after the pronouncement of judgment by Justice Ganediwala – before a bench led by the then Chief Justice of India S.A.Bobde, who stayed the acquittal of the accused under POCSO Act.

Quashing the high court's order, the top court referred to the dictionary meaning of the word "touch" which defines it as "the sense that enables you to be aware of things and what are like when you put your hands and fingers on them". It also referred to the dictionary meaning of the word "physical" which means "of or relating to body …" and the word "contact" means "the state or condition of touching; touch; the act of touching …".

The Court, thus, said,  "having regard to the dictionary meaning of the words "touch" and "physical contact", both the said words have been interchangeably used in Section 7 by the legislature." 

"The word "touch" has been used specifically with regard to the sexual parts of the body, whereas the word "physical contact" has been used for any other act. Therefore, 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 the POCSO Act", the apex court held.

It added that the act of touching any sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent, could not be trivialized or held insignificant or peripheral so as to exclude such act from the purview of "sexual assault" under section 7.

Justice Bhat, in his concurring but a brief separate opinion, agreed with the judgment authored by Justice Trivedi. He held that the interpretation of section 7 by the high court would not merely limit the operation of the law, but tend to subvert its intention.

"It has the effect of "inventions and evasions" meant to continue the mischief, which Parliament wished to avoid. The fallacy, therefore, in the High Court's reasoning is that it assumes that indirect touch is not covered by Section 7- or in other words is no "touch" at all", Justice Bhat said.

He held that the provision covers and is meant to cover both direct and indirect touch.

"In plain English, to touch is to engage in one of the most basic of human sensory perceptions. The receptors on the surface of the human body are acutely sensitive to the subtleties of a whole range of tactile experiences. The use of a spoon, for instance, to consume food – without touching it with the hand – in no way diminishes the sense of touch that is experienced by the lips and the mouth. Similarly, when a stick, or other object is pressed onto a person, even when clothed, their sense of touch is keen enough to feel it. Therefore, the reasoning in the High Court's judgment quite insensitively trivializes – indeed legitimizes -an entire range of unacceptable behaviour which undermines a child's dignity and autonomy, through unwanted intrusions", he held.

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