A Bench of the Supreme Court consisting Justice UU Lalit, BM Trivedi and Justice Ravindra Bhat has held 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 of the POCSO Act.

"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" could not have been intended or contemplated by the Legislature," the Bench observed while setting aside a judgment delivered by the Bombay High Court.

Justice Pushpa Ganediwala of the Bombay High Court (Nagpur Bench) had held that groping a minor's breast without skin-to-skin contact cannot be termed as sexual assault as defined under the POCSO Act. Since the man (accused) groped the child without removing her clothes the offence cannot be termed as sexual assault under Section-8 of the POCSO Act, but it does constitute the offence of outraging a woman's modesty under IPC section 354. A co-accused Libnus was also acquitted from the offences under Sections 8 and 10 of the POCSO Act.

Before the Supreme Court, Senior Advocate Siddhartha Dave as Amicus Curiae, Senior Advocate Siddharth Luthra for the accused through Supreme Court Legal Services Committee, Senior Advocate Geetha Luthra for National Women Commission while Attorney General for India K.K. Venugopal was the appellant in one of the appeals.

The lead judgment was authored by Justice BM Trivedi while a separate concurrent judgment has been delivered by Justice Ravindra Bhatt.

Justice Bhat observed that 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. 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. The High Court, therefore clearly erred in acting on such interpretation, and basing its conviction of and awarding sentence to the respondents; as it did they were guilty of sexual assault. In the case of Satish, the conviction is to be under Section 8," Justice Bhat observed.

Case Analysis

At the outset, the Bench observed that it is trite law that while interpreting a statute, the courts should strive to ascertain the intention of the Legislature enacting it, and it is the duty of the Courts to accept an interpretation or construction which promotes the object of the legislation and prevents its possible abuse.

"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 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 Bench ruled.

The Bench explains Section 7 of the Act thus, "Now, from the bare reading of Section 7 of the Act, which pertains to the "sexual assault", it appears that it is in two parts. The first part of the Section mentions the act of touching the specific sexual parts of the body with sexual intent. The second part mentions "any other act" done with sexual intent which involves physical contact without penetration."

Skin to Skin Contact and Sexual Intent

The Bench stated that there cannot be any disagreement with the submission made on behalf of the accused that the expression "sexual intent" having not been explained in Section 7, it cannot be confined to any predetermined format or structure and that it would be a question of fact, however, the submission of Mr. Luthra that the expression 'physical contact' used in Section 7 has to be construed as 'skin to skin' contact cannot be accepted.

"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. It is also needless to say that where the intention of the Legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result. 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," the Bench observed.

It stated, "skin to skin contact" for constituting an offence of "sexual assault" could not have been intended or contemplated by the Legislature. 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. 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," The Bench ruled.

Regarding submissions by Senior Counsel Luthra that there being an ambiguity, due to lack of definition of the expressions - "sexual intent", "any other act", "touching" and "physical contact", used in Section 7, coupled with the presumptions under Sections 29 and 30 of the Act, the reverse burden of proof on the accused would make it difficult for him to prove his innocence and, therefore, the POCSO Act must be strictly interpreted, the Bench held that there cannot be any disagreement with the said submission that a Penal Statute has to be strictly construed.

"However, it is an equally settled legal position that the clauses of a statute should be construed with reference to the context vis-a-vis the other provisions so as to make a consistent enactment of the whole Statute relating to the subject matter. The Court can not be oblivious to the fact that the impact of traumatic sexual assault committed on children of tender age could endure during their whole life, and may also have an adverse effect on their mental state. The suffering of the victims in certain cases may be immeasurable. Therefore, considering the objects of the POCSO Act, its provisions, more particularly pertaining to the sexual assault, sexual harassment etc. have to be construed vis-a-vis the other provisions, so as to make the objects of the Act more meaningful and effective," the Bench asserts.

The Court refused to accept the submissions by Senior Counsel Luthra that the "Rule of Lenity" requires a court to resolve statutory ambiguity in a criminal statute in favour of the accused, or to strictly construe the statute against the State.

The Bench pointed out, "The said submission of Mr. Luthra cannot be accepted in view of the settled proposition of law that the statutory ambiguity should be invoked as a last resort of interpretation. Where the Legislature has manifested its intention, courts may not manufacture ambiguity in order to defeat that intent."

Conclusion

While holding the judgment by the High Court is erroneous, the Bench observed thus, "the High Court while specifically accepting the consistent versions of the victim and her mother i.e. informant about the accused having taken the victim to his house, having pressed the breast of the victim, having attempted to remove her salwar and pressing her mouth, had committed gross error in holding that the act of pressing of breast of the child aged 12 years in absence of any specific details as to whether the top was removed or whether he inserted his hands inside the top and pressed her breast, would not fall in the definition of sexual assault, and would fall within the definition of offence under Section 354 of the IPC."

The Bench further stated that the High Court erred in holding that there was no offence since there was no direct physical contact i.e. "skin to skin" with sexual intent. The interpretation of Section 7 at the instance of the High Court on the premise of the principle of "ejusdem generis" is also thoroughly misconceived.

The Bench noted, "The principle of "ejusdem generis" should be applied only as an aid to the construction of the statute. It should not be applied where it would defeat the very legislative intent. As per the settled legal position, if the specific words used in the section exhaust a class, it has to be construed that the legislative intent was to use the general word beyond the class denoted by the specific words."

The Bench stated that, so far as Section 7 of the POCSO Act is concerned, the first part thereof exhausts a class of act of sexual assault using specific words, and the other part uses the general act beyond the class denoted by the specific words.

"In other words, 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, would be committing an offence of "sexual assault". Similarly, whoever does any other act with sexual intent which involves physical contact without penetration, would also be committing the offence of "sexual assault" under Section 7 of the POCSO Act. In view of the discussion made earlier, the prosecution was not required to prove a "skin to skin" contact for the purpose of proving the charge of sexual assault under Section 7 of the Act," The Court explained.

Case of Libnus Fransis Kujur

The High Court had acquitted Libnus for the offence under Sections 8 and 10 while maintaining the conviction for the offences punishable under sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act.

"When the alleged acts of entering the house of the prosecutrix with sexual intent to outrage her modesty, of holding her hands and opening the zip of his pant showing his penis, are held to be established by the prosecution, there was no reason for the High Court not to treat such acts as the acts of "sexual assault" within the meaning of Section 7 of the POCSO Act," the Bench observed.

The Bench noted that, "the High Court appears to have been swayed away by the minimum punishment of five years prescribed for the offence of "aggravated sexual assault" under Section 10 of the POCSO Act as the age of the prosecutrix was five years and the sexual assault if committed on the victim who is below 12 years is required to be treated as the "aggravated sexual assault" as per Section 9(m) of the Act."

The Supreme Court restored the judgment delivered by Trial Court while setting aside the judgment by the Bombay High Court. The accused Satish was convicted for the offences punishable under Section 8 of the POCSO Act and under Sections 342, 354 and 363 of the IPC. The accused in the second case, Libnus Fransis Kujur was convicted for five years for the offences punishable under Sections 354-A (1)(i) and 448 of the 35 IPC as also for the offences under Sections 8, 12 and 10 read with Section 9(m) of the POCSO Act.

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