NEW DELHI: Holding that physical contact with a child with sexual intent could not be trivialised by excluding it from the ambit of sexual assault, the Supreme Court on Thursday ruled that direct skin-to-skin touch is not essential and even indirect touch amounts to an offence under the Protection of Children from Sexual Offences Act.
A bench of Justices U U Lalit, S Ravindra Bhat and Bela M Trivedi quashed two judgments of the Bombay high court which had held that “skin to skin” contact was essential for the purpose of proving the charge of sexual offence under Pocso and held that a narrow interpretation of “physical contact” would defeat the purpose of the Act, which was framed to protect children. The high court ruling had caused widespread consternation as it could have allowed offenders to exploit the reference to escape the ambit of the law.
“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 trivialised or held insignificant or peripheral so as to exclude such act from the purview of ‘sexual assault’ under Section 7,” the bench said. It noted use of gloves, cloth, or contact through clothes, or even use of condoms, could have been excluded in the light of the HC orders despite sexual intent.
The HC verdict passed in January had led to considerable outrage and it was attorney general K K Venugopal who challenged it before the Supreme Court saying the order was outrageous and will have wider ramifications on 43,000 Pocso cases registered every year in the country. It is the only second time in the history of the SC that the attorney general moved court against an HC order. The first was in 1985 when the then AG challenged a Rajasthan HC order directing execution of death sentence by public hanging.
The National Commission for Women and Maharashtra government had also subsequently filed appeals against the HC verdict. “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,” Justice Trivedi, who penned the judgment for herself and Justice Lalit, said.
“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 ‘sexual intent’ and not ‘skin to skin’ contact with the child,” she said.
In a separate but concurrent verdict, Justice Bhat said that the fallacy in the HC’s reasoning is that it assumed that indirect touch is not covered by Section 7 or, in other words, is no touch at all. He said the section covers 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 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 trivialises — indeed legitimises — an entire range of unacceptable behaviour which undermines a child’s dignity and autonomy, through unwanted intrusions,” Justice Bhat said.
The bench said that HC ignored surrounding circumstances — like the accused having taken the victim to his house, unzipping his pants, contact with sexual organs and attempt to remove clothes of the victim — all of which justified the conclusion about the culpable mental state of the accused.
“…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 the Act,” the bench said while convicting both the accused under the Pocso Act. While one convict was given three years of imprisonment, the other was awarded a five-year jail term.