Payal Chawla
TW: SEXUAL ASSAULT, KIDNAPPING A minor girl child of 12 years leaves her home looking for a guava. She is lured by a neighbour, into his home, on the pretext of giving her the fruit. He then touches her breasts and attempts to pull down her salwar. The shouts of the child are heard by another neighbour. Meanwhile, the mother is looking for her daughter and is loudly calling for her by name. While searching, she is met by accused in the staircase, who denies knowledge of knowing her whereabouts. The mother, in search, goes up the stairs and finds the accused’s apartment bolted from outside – she opens the door to find her child inside, who relates the events to her. Those are the facts and they are accepted by both the trial court and the High Court. On 05.02.2020, the Extra Joint Additional Sessions Judge, Nagpur (‘trial court’) held that the accused was guilty of the offence of “Sexual Assault” under the Protection of Children from Sexual Offences Act, 2012 (“POCSO”) and also of outraging a woman’s modesty, kidnapping and wrongful confinement. In appeal, the High Court of Bombay, does not bring into question the facts, and limits its consideration to the issue of “whether the ‘pressing of breast’ and ‘attempt to remove salwar’ would fall within the definition of ‘sexual assault’ as defined under Section 7 and punishable under Section 8 of the POCSO Act”. In the Court’s opinion, the mother and child were both credible. The Court, however, disagreed with the prosecution that the facts fell within the mischief of ‘Sexual Assault’. According to the Court the accused had not ‘removed’ the child’s top and there was no ‘skin-to-skin’ physical contact with sexual intent and the acts would be punishable under the lesser offence of outraging a woman’s modesty. This finding was reached on the reasoning that ‘sexual assault’ provides ‘stringent’ punishment of 3-5 years as opposed to outraging a woman’s modesty which is punishable by 1-3 years and therefore ‘stricter proof and serious allegations are required’. The relevant part of Section 7 of POCSO reads – “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.” In essence, anything short of ‘penetration’ amounts to ‘sexual assault’. A plain reading of the Section shows there is no requirement of skin-to-skin contact. There is further nothing in the POCSO Act to suggest that a higher burden of proof is required for a conviction under the Act. The ‘object and effect’ principle and a purposive interpretation of a statute are well settled principles of law and would squarely apply to the present case. Now, imagine if a perpetrator were to touch the private parts of a child with gloved hands or, worse still, he wore a contraceptive sheath and made the child touch his genitalia – would such conduct not amount to ‘sexual assault’ and be excepted from the definition of ‘sexual assault’ merely because there was no skin-to-skin physical contact? Such an interpretation would defeat the very object and purpose for the enactment of this special law. POCSO was enacted as a comprehensive law for the protection of children from the offences of sexual assault, sexual harassment and pornography. In fact, the Government enacted the 2019 amendments to the Act, making it more strigent, placing reliance on the National Crime Records Bureau Report, 2016 which indicated an increase in the number of registered cases under the Act by 178.6% in 2014 over 2013. It is also curious that the Court recognises the requirement of keeping the name ‘undisclosed’ but goes on to reveal the name of the child two sentences later. The judgment is also flawed insofar as it upholds the conviction for wrongful confinement, while dropping the kidnapping charge without as much as a mention and without assigning any reasons. The Apex Court acted swiftly and granted a stay, on 27.01.2020, to a judgement the Learned Attorney General described as ‘disturbing’.
