Sec 7 POCSO - Main Ingredient Of Offence Of 'Sexual Assault' Is 'Sexual Intent' And Not 'Skin To Skin" Contact : Supreme Court

While reversing the controversial Bombay High Court's judgment in a POCSO case, the Supreme Court observed that the main ingredient of the offence of sexual assault under Section 7 of the Act was "sexual intent" and and not "skin to skin" contact."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" , noted the judgement the judgment delivered by a bench comprising Justice UU Lalit, S Ravindra Bhat and Bela Trivedi."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", the Supreme Court held. Impugned judgementsThe Bombay High Court in Satish v State of Maharashtra had held that since there was no skin-to-skin contact between the offender and the victim, it would not be 'sexual assault' under S.7 of the POCSCO Act. The Single Judge held:"it is not the case of the prosecution that the appellant removed her top and pressed her breast... it is not the case of the prosecution that the appellant removed her top and preher breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration."It further noted that: "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 of breast of the child aged 12 years, in the absence of any specific details 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'." In Libnus v State of Maharashtra, the same Single Bench noted:"'The words 'any other act' encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of 'ejusdem generis'. The act should be of the same nature or closure to that. The acts of 'holding the hands of the prosecutrix' or 'opened zip of the pant' as has been allegedly witnessed by PW-1, in the opinion of this Court, does not fit in the definition of 'sexual assault'.The majority opinion is authored by Justice Bela Trivedi on behalf of Justice U.U.Lalit and herself whereas Justice Ravindra Bhat has delivered a separate, concurring opinion. The majority judgement notes that while interpreting a statute, the court should strive to ascertain the intention of the Legislature enacting it and that "it is the duty of the Court to accept an interpretation or construction which promotes the object of the legislation and prevents its possible abuse." In line with this rule of statutory interpretation, the judgement notes that the POCSO Act was enacted to protect children form the offences of sexual assault, sexual harassment and pornography- and this is the intention which has to be kept in mind while interpreting its provisions. On the interpretation of S.7 of the POCSO Act and the meaning of the terms 'touch' and 'physical contact', the judgement refers to the dictionary meaning of the terms and notes that both the said words have been used interchangeably in S.7 by the Legislature. It further holds that the most important ingredient for constituting the offence of sexual assault is 'sexual intent' and not the 'skin-to-skin' contact with child. On this issue, the judgement holds: "Therefore, the act of touching the sexual part of 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." (Para 32)" It is not the presence or lack of intervening material which should be focused upon, but whether the contact made through the material, comes within the definition prescribed for a particular statue, has to be seen." In rejecting the submission that 'physical contact' would require skin-to-skin contact, the judgement notes: "As per the rule of construction contained in the maxim "Ut Res Magis Valeat Quam Pereat", the construction of a rule should give effect to the rule rather than destroying it. Any narrow and pedantic interpretation of the provision which would defeat the object of the provision, cannot be accepted." (Para 33)"Restricting the interpretation of the words "touch" or "physical contact" to "skin to skin contact" would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision. "skin to skin contact" for constituting an offence of "sexual assault"...

Sec 7 POCSO - Main Ingredient Of Offence Of 'Sexual Assault' Is 'Sexual Intent' And Not 'Skin To Skin" Contact : Supreme Court

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Sec 7 POCSO - Main Ingredient Of Offence Of 'Sexual Assault' Is 'Sexual Intent' And Not 'Skin To Skin" Contact : Supreme Court

Sneha Rao

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