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Is Skin-to-Skin Contact A Must To Constitute Sexual Assault?

Hon’ble Justice Pushpa Virendra Ganediwala of the Nagpur Bench of Bombay High Court, on January 19, 2021, held that groping a minor’s breast without “skin-to-skin contact” cannot be termed as sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act, 2012. The Court ruled that there must be “skin-to-skin contact with sexual intent” for an act to be considered sexual assault. The section required “strict proof and serious allegations.”

The Court set aside the conviction of Satish, a 39-year-old Nagpur resident who was found guilty by Sessions Court on February 5, 2020, under the Protection of Children from Sexual Offences (POCSO) Act  for pressing the breast of 12-year-old girl four years ago. The Judge reduced his conviction to Section 354 of IPC.

“Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin-to-skin with sexual intent without penetration”, the Court observed.

“In view of the above discussion, this Court holds that the appellant is acquitted under Section 8 of the POCSO Act and convicted under minor offence u/s 354 IPC and sentenced him to undergo rigorous imprisonment (RI) for one year and to pay fine of Rs. 500/=, in default of fine to suffer RI for one month. The sentence for the offence punishable under Section 342 of the IPC i.e. six months and fine of Rs. 500/=, in default to suffer RI for one month, is maintained”, noted the Bench.

The man had been convicted by Additional Sessions Judge, Nagpur on February 5, 2020, under Section 8 of POCSO Act, with rigorous imprisonment for three years and a fine of Rs. 500/=, in default to spend one more month in jail, read with Section 354 of IPC, and sentenced to rigorous imprisonment for three years with fine of Rs. 500/=, in default to remain in jail for one more month.

The mother of the victim on December 14, 2016, had lodged a complaint with the Gittikhadan police station, Nagpur, that her 12-year old daughter had gone out of the house to get a guava. On the way, the man stopped her daughter and told her that he would give her a guava and took her to his house, where he pressed the breast of the minor and also attempted to remove her salwar. As the girl shouted for help, he ran away.

In the High Court, arguing for appellant, advocate Sabahat Ullah submitted that the statement of the mother was based on hearsay because she had not witnessed the incident and also raised doubts about the girl’s account. The Court, however did not accept his arguments. Additional public prosecutor  M.J. Khan opposed the appeal and said that the offence beyond doubt amounted to sexual assault.

In other two judgements too, Justice Ganediwala reversed the conviction under POCSO Act. On January 14, 2021, the Judge reversed a lower court’s order convicting a 23 year old accused for rape of a minor on the ground that the testimony did not “inspire confidence” and wasn’t of “sterling quality”. In November, 2018, the lower court had sentenced him to 10 years’ rigorous imprisonment and a fine of Rs. 500/=.

On January 15, 2021, Justice Ganediwala while deciding a criminal appeal filed by one Libnus Kujur aged 50, a labourer, who was convicted by lower court of “aggravated sexual assault”, ruled that holding the hands of a five year old girl and unzipping one’s trousers in front of her does not amount to sexual assault under POCSO Act.

Reacting to the above developments, the active members of society divided their opinion in ‘for’ and ‘against’ of the judgements. Some felt that the verdicts of the Bombay High Court have far reaching implications for woman/child safety and their emotional well-being. The sexual predators are likely to perceive and twist this ruling to their advantage.

Whereas, others felt that the quantum of punishment has to be measured with the extent of offence committed and proved beyond doubt. An accused should not be punished harshly and excessively just to set an example to deter others. The first British Courts called Mayor’s Courts were established in India “to give judgement and sentence according to justice and right”.

A Bench of Supreme Court comprising Justices Indira Banerjee and Hemant Gupta on February 21, 2021, has reiterated, “It is well settled by a plethora of judicial pronouncements of this Court that suspicion however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.”

Lawyers Update took the opinion of legal luminaries and an activist to know the legal position pertaining to the subject matter.  

Ritwik Bisaria, vice president- Men Welfare Trust said,  “The act is clearly defined in terms of the ‘touch’ of the specific body parts as an offence under the relevant section. Every kind of a wrong touch has a different connotation. As such, the effect of a touch on clothes and a touch on bare body can not be the same. This is what the Hon’ble Bombay High Court has clarified in its judgement. However, the issue of Indian society is that it is driven by feminism and therefore all sections of the society would desire to hand out death penalty to a man involved in sexual offence, marital dispute or domestic violence, whatsoever. There is no equal protection of law as far as the male gender is concerned.

Bisaria further said that from the perspective of justice, quantum of punishment should be weighed with the extent of the offence. The society is following a wrong notion of deterrent punishment to set example for others at the cost of the accused. This thought of deterrent punishment is a clear act of injustice to the accused. The accused should be punished for the offence he committed and not for preventing others to commit crime by handing out a harsher punishment . If setting example for others is the norm, then death penalty should be given on all minor offences including the violation of traffic rules. According to the reported news 90% of the pick pockets operating at Delhi Metro are women.

Bisaria added that the society did not find anything wrong in the judgement given by the same judge in the case of Vijayshree vs. Dr. Nishant, pronounced on January 8, 2021, in second Appeal No. 125 of 2019. In this judgement, Justice Pushpa V. Ganediwala ordered alimony for a divorced wife, although no application for the same was made before the Family Court. The Court was quick in ignoring the terms of the mutual consent divorce with regard to alimony. But no section of society, or the Collegium found this judgement objectionable just because the biased society finds harsher punishment to men folk acceptable. India wakes up only when it finds something wrong with female gender.

K.C. Kaushik, leading advocate practicing in Supreme Court said, “The judgement of Bombay High Court is appealable in Supreme Court of India. The wrong if any committed by the High Court Judge shall be rectified by Supreme Court. However, in my opinion Justice Ganediwala has minutely viewed the case in the light of the facts on ground without getting emotionally charged or being biased. As such, the Hon’ble Judge has convicted the accused under Section 354 of IPC and also upheld the previous conviction under Section 342 of IPC. At the most the High court could have added the prosecution under Section 12 of POCSO Act for sexual harassment.”

Kaushik further pointed out that “Justice Ganediwala should have been given opportunity of right to fair hearing before Collegium’s action in accordance to the norms of the principles of natural justice (i) nemo judex in causa sua; and (ii) audi alteram partem. There have been several faulty decisions of different High Courts, which are finally corrected by the Supreme Court. Law is expected not to proceed on emotions and sentiments.”

Advocate Khursheed Zaidi opined, “The sexual exploitation and sexual abuse of the children has  been taken by Government of India as heinous crimes,  regarding the interests of children of paramount  importance at every stage. Thus in 2012 the POCSO Act  came into being. This Act covered offences of sexual assault,  sexual harassment and pornography. This Act was  applicable upon the children below the age of 18 years. After  Nirbhaya case, the Indian Penal Code (IPC) was thoroughly amended pertaining to sexual crimes against women. But the POSCO Act overrides the effect of IPC and the punishment in the offences under  POCSO Act was made more stringent.  In January, 2021, the Nagpur Bench of Bombay High  Court delivered three judgments in separate cases relating to  offences against children, which includes: Libunus vs State of Maharashtra and Satish  vs State of Maharashtra. These judgments attracted the  attention of the community engaged in the protection of  children and raised several questions of interpretation. The  legality of the same is put in appeal before the Apex court.”

Zaidi added, “ In Libunus case, Justice Pushpa acquitted a 50-years  old man who was convicted by the POCSO Court for his act  of holding the hand of 5-years old girl, with his pant’s zip open.  The appellant in this case was convicted for the aggravated  sexual assault under section 10 and 12 of POCSO Act in  addition to section 354-A and section 448 IPC. The Bombay  Htigh Court set aside the conviction of the appellant under  section 10 and 12 of the POCSO Act and convicted under  section 354-A. 

The ld. Judge misdirected by the provisions of section  42 POCSO Act, which reads as under :

“………..the offender found guilty of such offence shall be  liable to punishment under the Act or under the Indian Penal  Code as provides for the punishment which is greater in  degree”. 

The ld. Judge could not take the notice of the provisions  of section 42-A of the POCSO Act, which reads as under : 

“……………in case of any inconsistency, the provisions  of this Act shall have overriding effect on the provisions of any  such law to the extent of inconsistency”. 

In this case the victim is 5-years old, thus the  provisions of the POCSO Act has overriding effect and the  appellant can only be convicted under the provisions of  POCSO Act. The approach of Justice Pushpa has been  misdirected by the provisions of Section 42 of POCSO Act and  she adopted the alternative, as the provisions of section 11  POCSO Act overlap with the ingredients of Section 354-  IPC. 

In Satish case, Justice Pushpa acquitted a 39-years old  man of the charges under Section 8 of POCSO Act and  convicted the appellant under Section 354 IPC. Here in this  case, the victim is 12-years old girl. The allegations against  the accused in this case were that the accused pressed the  breasts of the victim. 

The provisions of section 354-A IPC reads as under : 

Sexual harassment and punishment for sexual  harassment : A man committing any of the following acts: 

(i) Physical contact and advances involving unwelcome  and explicit sexual overtures………..” 

The POCSO Act came into being for the same offence.  Section 7 of the POCSO Act reads as :

sexual Assault : whoever, with sexual intent touches the  vagina, penis, anus or breast of the child…..” 

Here in this case “touches the breast of the child”  covers the entire case. Thus the punishment should be under  section 8 of the POCSO Act and not under the provisions of  the Indian Penal Code. 

This all happened due the provisions of Section 42 and  42-A of the POCSO Act. Though these provisions were  introduced by Act No. 13 of 2013 by substituting the old  provision, but it did not suffice the requirement and created  an anomaly.”

Senior Advocate Mahalakshmi Pavani, President Supreme Court Women Lawyers Association said,  “We must first examine the intent of Parliament in enacting the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The POCSO Act was specifically passed by Parliament by virtue of Article 15 (3) of the Constitution, in order to protect children and punish offenders who have been convicted of committing heinous crimes such as sexual assault and sexual harassment. Furthermore,
the POCSO Act was enacted in furtherance of India’s commitment in acceding to the United Nation Convention on the Rights of the Child. Sexual assault, as defined under Section 7 of the POCSO Act, states that 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.” 

Mahalakshmi further said, “The punishment for sexual assault, as provided for in Section 8 of POCSO Act, involves a term of imprisonment which may extend between three to five years, coupled with a fine. From a bare reading of Section 7 of the POCSO Act, it would appear that the Learned Single Judge of the Hon’ble Bombay High Court has erroneously applied this provision by stating that skin-to-skin contact is necessary in order to constitute an offence under the POCSO Act. Therefore she applied the principle of skin-to
-skin in the literal sense which she ought not to. In this matter, the two main elements of the offence, viz. (1) sexual intent and (2) touching the breast of the child, were already fulfilled in order to not interfere with the findings of the Special Court. There was absolutely no need to go further and establish whether skin-to-skin contact is a pre-requisite in order to make out an offence under the POCSO Act, and hence the same is not justified. In fact, this unreasonable finding would only add to the trauma of the child, who as a victim of such sexual assault and, as pointed out by the Learned Attorney-General, would set a disturbing precedent.”

Mahalakshmi Pointed out that “A lot depends on the facts and circumstances of each matter, considering the fact that judgments that have been delivered by the Supreme Court and various High Courts have binding and persuasive value. The lower courts, that try the matter in the first instance, are bound to follow these precedents that have been laid down by the higher judiciary of our country. We must bear in mind that POCSO Act is a special legislation that is needed to protect children. The atrocities committed by the perpetrators of sexual assault and sexual harassment tend to have a psychological impact on the life of the victim, especially when the children are impressionable in their formative years. In such cases, the onus is on the Hon’ble Courts to interpret the statute strictly, wherein the punishment meted out to a convict not only acts as a deterrent, but also inspires confidence in the judicial system of our nation. In matters concerning sexual offences, especially against children, the courts after considering all the facts and evidence of the case, must decide the case quickly without delay and hand out a harsher punishment to an accused who has been found guilty and is convicted under the POCSO Act.”

With regard to  Justice Ganediwala’s elevation to permanent Judge, Mahalakshmi said, “ She has already been sworn-in as an Additional Judge of the Hon’ble Bombay High Court for an additional term of one year, so it would not be fair to comment on this but I am certain that the Collegium of the Hon’ble Supreme Court, the authority that appoints judges to the higher judiciary, must have made its decision with all its wisdom and after a lot of deliberation.”

Advocate Yawer Qazalbash having to his credit  illuminating experience of 60 years law practice said, “The Jan19, 2021 judgment of Justice Pushpa Virendra Ganediwala of Nagpur Bench of Bombay High Court seems to be just and correct on the ground of well discussed evidence and the circumstances. But the three Judge Bench of the Honourable Apex Court’s stay order, without hearing or giving an opportunity to the learned Justice Pushpa, it is submitted, looks to be out of order.

The accused was convicted under Sections 354, 363, 342 IPC and Section 8 of POCSO Act 2012 by the trial judge after duly framing charges under the mentioned sections. Learned judge of HC had discussed in detail the entire evidence on record, as well as definition of “Sexual Assault”, provided u/s 7 of POCSO Act. Section 354 and Ss. 7, 8 POCSO Act are overlapping offences, providing sentences of one year and at least three years respectively.

General rule of criminal jurisprudence is that the punishments should be awarded in a more balanced and moderate manner, because according to Banthum, the punishment in excess is apt to defeat its own object by producing a reaction. It is also a rule of common-sense that the provided punishment must be directly proportional to the degree of the prohibition in a particular circumstance.

The learned judge has discussed the circumstances in detail, which included that the victim  was fully dressed when her breasts were pressed and there was no skin-to- skin contact. Besides, the testimony of the mother, the complainant, is simply hearsay and that it was not contention of the prosecution that the accused removed the clothes of the victim.

In the circumstances the learned judge took the right decision to convict the accused u/s 354 IPC, instead of Section 8 POCSO Act, which provided a minimum sentence of at least three years.

Vasudeva Rao, IPS (Retd,), former Special Commissioner of Delhi Police said, “Absolutely, ‘No’. The very initiation of any physical movement toward such commission of such an act constitutes the offence under the special law. There can be no compromise on the requirement of the most deterrent  punishment in all such cases, given the grave  and still escalating situation  concerning safety and dignity of women  in the country today. The basic facts of the case have already come on record. There is no scope for any delay in response to the judgment, as otherwise, it will make judiciary the laughing stock of the nation and embolden criminal  elements to go berserk. It would only  result in the travesty of  gender justice and subversion of  the Constitution.”

The Protection of Children from Sexual Offences (POCSO) Act, 2021, was formulated to effectively address the heinous crimes of sexual abuse and sexual exploitation of children. This Act of 2012, was introduced to provide for the protection of children from the offences of non-penetrative sexual assault, aggravated sexual assault, sexual harassment, child pornography and other sexual offences against children. For this purpose, this Act provides for the establishment of Special Courts for trial of offences under the Act. Whereas, clause (3) of Article 15 of the Constitution, inter alia, empowers the State to make special provisions for children.

The United Nation’s Convention on the Rights of Children, was ratified by India on 11th December, 1992. The data collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children. This is corroborated by the ‘Study on Child Abuse: India 2007’ conducted by the Ministry of Women and Child Development.

The big question arises as what have been the compulsions world-wide to formulate the child protection laws against sexual abuse and what all are the factors in the result of which there has been a sudden increase in cases of sexual offences against children? The prudish answer is that the ‘online pornography’ is the main culprit behind sexual offences against children and that the government, the courts and the society as a whole are responsible for letting these crimes happen by not banning online pornography which is the real causal factor behind sexual offences against women and children.

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Hasan Khurshid

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