Sexual intent key, not skin-to-skin contact: SC

IN CONTROVERSIAL RULING, THE HC HAD ACQUITTED A MAN OF SEXUAL ASSAULT CHARGES UNDER POCSO ACT FOR GROPING A 12YEAR-OLD CHILD

NEW DELHI: The Supreme Court on Thursday set aside a verdict of the Bombay high court that said skin-to-skin contact was a necessary ingredient for punishing persons accused of sexually assaulting minors.

The apex court said the most important ingredient in convicting sexual offenders under POCSO Act is “sexual intent and not skin-to-skin”.

In a controversial ruling, the HC had acquitted a man of sexual assault charges under the Prevention of Children from Sexual Offences (POCSO) Act for groping a 12-year-old child.

The top court directed the accused to surrender in four weeks and undergo a punishment of three years and five years punishment as awarded by the Special POCSO court.

Earlier in January, the Nagpur bench of the Bombay high court had set aside the conviction of a man who was found guilty under the POCSO Act for groping a 12-year-old girl four years ago, commuting his punishment.

The court had ruled that it could not be deemed an offence under the Pocso Act because there had been no skin-to-skin contact with sexual intent as the child was clothed. “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 on January 19. Therefore, the court acquitted the accused under Section 8 (punishment for sexual assault) of the POCSO Act. However, the court maintained his conviction under Sections 354 (assault of criminal force) and 342 (wrongful confinement) of the IPC, and said that the act which he committed amounted to the use of criminal force to outrage her modesty.

The punishment for sexual assault under Section 8 of the POCSO Act is imprisonment of three to five years. Whereas, the punishment under Section 354 of IPC is imprisonment of one to five years.

The matter was taken up by the top court after Attorney general KK Venugopal had urged the top court to reverse the judgement, saying it was a “very disturbing conclusion” and it would set a dangerous precedent. The country’s top law officer also said that going by the approach of the high court, anybody can get away with a sexual assault offence by wearing surgical gloves.

Subsequently, appeals challenging the judgment were filed by the National Commission for Women. Senior Advocate Sidharth Luthra had argued for the accused and said, “sexual intent requires physical contact but, in

this case, the clothing was touched not the skin.”

The POCSO Act defines sexual assault as when someone “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”.

The SC had questioned the interpretation of touch during the hearings. “What does touch mean, simply a touch? Even if you’re wearing a piece of clothing, they’re not trying to touch clothing. We must see touch in the meaning that Parliament intended,” the Court noted.