Author: Ashwini Vernekar Student, Mumbai University
Introduction
There has been a roaring controversy with regard to the order passed in this case i.e. Satish versus State of Maharashtra (Criminal Appeal No. 161 of 2020) by the Nagpur bench of Bombay High Court, wherein the interpretations of law and the depth of the offence was questioned. In this case a man was acquitted on the grounds that pressing the breasts of a child over her clothes without direct “skin to skin” physical contact does not constitute “sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act.
Facts
The mother of the prosecutrix who is the informant in the matter lodged a report at police station of Gittikhadan, Nagpur, stating that the Appellant/Accused took her daughter aged 12 years, on the pretext of giving her a guava and in his house, he pressed her breast and attempted to remove her salwar. At that point of time, the informant reached the spot and rescued her daughter. On the basis, the said FIR was registered against the appellant/accused.
An appeal is filed by the Appellant/Accused against the judgement and order dated 05.02.2020 in Special Child Protection Case no. 28 of 2017 passed by the Joint Additional Sessions Judge, Nagpur by which appellant/accused was convicted for the offence punishable under Section 354 (Assault or criminal force to woman with intent to outrage her modesty), 363 (Punishment for kidnapping) and 342 (Punishment for wrongful confinement) of Indian Penal Code and Section 8 of Protection of Children from Sexual Offences Act, 2012, (hereinafter referred as POSCO Act). The Appellant was awarded with three years of rigorous imprisonment and to pay fine of Rs. 500/-
Issues
Whether pressing of breast would fall within the definition of sexual assault as defined under section 7 and punishable under section 8 of the POSCO Act.
Argument and Reasoning by the Court
The learned APP read out section 7 of the POCSO Act, which defines sexual assault and submitted that the act which has been proved by the prosecution “pressing of breast” comes within the definition of sexual assault under section 7 of the POCSO Act.
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.
The court held that as per this definition, the offence involves the following necessary ingredients:
(i) Act must have been committed with sexual intent.
(ii) Act must involve touching the vagina, penis, anus, or breast of the child.
or making the child touch the vagina, penis, anus or breast of such person or any other person.
or doing any other act with sexual intent which involves physical contact without penetration.
The “physical contact without penetration” mentioned in the definition of sexual assault must be “skin to skin” or direct physical contact.
And 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.
Whether the punishment provided under Section 8 of the POSCO Act by the lower court justified?
Arguments and Reasoning of the Court
The APP laid down the order passed by the lower court was justified as the act covered under Section 7 of the POCSO Act and the appellant/accused shall be liable for the punishment under such act. Whereas, the Appellant, stated that the act would not amount to sexual assault and had raised question on the mental capacity of the prosecutrix, but later the appellant could not put on record that she was not a competent witness and her answers to the questions were not rational. The learned counsel for the Appellant also strongly argued with regard to testimony of PW-1 (informant in the matter), she being a hearsay witness. No doubt PW1 does not claim to have seen the incident, however, her testimony would be relevant and admissible in evidence under section 6 of the evidence act.
The Court held that evidently, it is not the case of the prosecution that the appellant removed her top and pressed her breast. The punishment provided for offence of sexual assault is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall be liable to fine. Considering the stringent nature of punishment provided for the offence, in 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 detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in definition of sexual assault. It would certainly fall within the definition of the offence under Section 354 of Indian Penal Code.
Section 354 of IPC, states “Assault or criminal force to woman with intent to outrage her modesty- Whoever assaults or uses criminal force to any woman, with intention to outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine”.
Section 7 of the POCSO Act with minimum sentence provided is three years and Section 354 of the Indian Penal Code which is related to outraging the modesty of a woman, prescribes minimum sentence of one year. In this instant case with regard to the nature of the offence the court is of the opinion that such act would come under Section 354 of the Indian Penal Code. It is basic principle of the criminal jurisprudence that the punishment for an offence shall be proportionate to the seriousness of the crime.
Ruling
The Court holds appellant is acquitted under section 8 of the POSCO Act and convicted under minor offence u/s 354 of IPC and sentenced him to undergo Rigorous Imprisonment for one year and to pay fine of Rs. 500/-, in default of fine to suffer R.I. for one month is maintained.
Conclusion
The judgement raised various questions and negative effect on the worth of judiciary and reeking of judicial insensitivity to the larger issue of child abuse, by the requirement of skin-to-skin contact as an essential ingredient for sexual assault. The learned judge has stirred a homet’s nest. It would not only be a bad precedent but also would negatively impact the society.
Such precedence shall motivate the criminals to do crimes and to be protected by such judgement. Acts like usage of gloves or other material would be a good defe[1]nce against the criminal liability. Similarly, usage of condom by a rapist would save him from the charges of Rape. It will lead to a bad impact on the people and will favour the criminals and would give them protection by abuse of basic principles and morals of law. It has been one of the major concerns with regard to outraging of modesty of a child and POCSO Act was enacted to deal with evil and to impart speedy justice. It is a child friendly legislation but such precedence would negate the actual intent of the act and would badly shaken the belief of the subjects on the judiciary.
Meanwhile, National Commission for Protection of Child Rights (NCPCR) and various organisationsSatish vs State of Maharashtra had earlier asked Maharashtra Government to urgently appeal the High Court judgement.
The Supreme Court stayed the order saying groping a minor’s breast without “skin to skin contact” cannot be termed as sexual assault. The judges submitted that such judgement where “unprecedented” and “is likely to set a dangerous precedent”. It cripples the intention of POCSO to punish sexual offenders.
[1] https://indiankanoon.org/doc/158325618/; https://www.indiacode.nic.in/handle/123456789/2079?locale=en; https://www.livelaw.in/pdf_upload/pressing-a-childs-breast-without-skin-to-skin-contact-does-not-amount-to-sexual-assault-under-pocso-act-bombay-high-court-388064.pdf;
To read about the Writ Jurisdiction of the High Courts under Article 226 of the Constitution of India click here