'The Offence of Sexual Assault Under S.7 of POCSO Requires Skin-To-Skin Contact': Argues Senior Advocate Siddharth Luthra For The Accused

The Supreme Court Bench of Justices U.U.Lalit, Ravindra Bhat and Bela Trivedi has on Thursday continued the hearing in SLP filed by ASG K.K.Venugopal against the acquittal of an accused in terms of Bombay High Court judgment which held that skin to skin contact is necessary to constitute sexual assault under S.8 of the POCSO Act. The Bench had earlier on Wednesday heard arguments of Attorney General K.K.Venugopal, Senior Advocate Geeta Luthra (appearing for National Commission for Women) and Senior Advocate Siddhartha Dave (Amicus Curiae) in the matter. Continuing his submissions from Wednesday, Senior Advocate Siddhartha Dave, Amicus Curiae, argued that certain actions of the accused had escaped the attention of the honourable Bombay High Court which, in its impugned judgement, focussed only on the actions of touching of breasts. He submitted that actions of the accused- i.e catching the hand of the victim-child, removal of salwar fell within the second part of S.7 of the POCSO Act punishes 'any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.' He further argued that skin-to-skin touching was not required as the word 'naked' was missing from S.7 of the POCSO. He made reliance on the MP High Court case where the argument of the defense counsel that the touch must be with respect to the naked vagina, naked penis or naked breasts were rejected by the court. He also relied on a Calcutta High Court case where touching the vagina over the undergarments was held to be sufficient to constitute an offence of sexual assault. Making reliance on Canadian Supreme Court cases, he submitted that the intention of the person committing the act is a factor in considering whether the touch is sexual or not. Senior Advocate Siddhartha Dave concluded his arguments by submitting that: "When two interpretations are possible, the interpretation which is favourable to children must be taken." Taking up arguments for the accused on behalf of the Legal Aid Society Senior Advocate Siddharth Luthra, began his arguments by seeking to break down S.7 of the POCSO Act into two parts- one, touching vagina breasts, anus or penis and second, doing any other act with sexual intent which involves physical contact. He argued that in the second part of S.7 since the phrase 'contact' was preceded by 'physical', the import would be that skin-to-skin contact would be essential to constitute an offence of sexual assault. He further submitted that the crucial difference between S.354 of IPC (Outraging the modesty of a woman) and S.7 of POCSCO was the fact that under S.354 even the touching of cloth would be a part of force or criminal force. "S.354 includes not only physical contact but also touch over clothes."-he submitted. The Bar and Bench engaged in a lengthy discussion on the meaning and import of 'touch' under S.7 of the POCSO Act. In response to Sr. Adv. Siddharth Luthra's submission that physical touch must require skin-to-skin touch, the Bench quipped: "What does touch mean? Let's go by simple definition. You are not merely wanting to touch the clothing if there is a sexual intent. We must see touch in the meaning that Parliament intended. That's why we have to go by the general meaning of touch." In response, Sr.Adv. Siddharth Luthra sought to create a distinction between the first and second part of S.7 of the Act. He submitted: "I'm not disagreeing. My point is there are two parts to provision. In the first part, the touch maybe with or without skin. No problem there. In the second part, the word 'contact' is qualified by 'physical' so there is requirement for skin-to-skin contact." In response Justice U.U.Lalit asked: "So, do we understand your submission that the first part skin to skin need not be there? According to you, in the second part skin to skin contact is essential." Further Justice Ravindra Bhat asked: "In that case would it be necessary for you to rely on the second part of S.7?" Sr. Adv. Siddhartha Luthra responded that the distinction becomes relevant for the case of Libnus where the accused is said to have touched the child's shoulder and showed his penis. He further submitted that wherever there is an ambiguity in law, the Rule of Lenity must apply and the ambiguity must be decided in favour of the accused. Relying on the principles of statutory construction, Senior Advocate argued that there is a difference between the import of the first and second parts of S.7 of the POCSO Act. Going back to the distinction between 'touch' and 'physical contact' that was argued by Sr.Adv. Luthra, the Court asked why there was a difference, if any between the two terms. The Court asked: "If the import of both is the same then why the legislature is using two different terms? Can we say that physical contact is anything less than touch?" ...

'The Offence of Sexual Assault Under S.7 of POCSO Requires Skin-To-Skin Contact': Argues Senior Advocate Siddharth Luthra For The Accused

Sneha Rao

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