The provision defining the offence of sexual assault against children under the POCSO Act must be looked at from the “victim's perspective” and if the “sexual intent” is present then the offence is made out even without "skin-to-skin contact", the Supreme Court Thursday orally observed.
A Bench headed by Justice U U Lalit stressed on the intent to commit the sexual offence and said the results would be “disastrous” if the term “physical contact” in the provision is interpreted in a way where the skin-to-skin contact becomes necessary for constituting the offence.
The top court reserved its verdict on two appeals filed against the Bombay High Court verdict, which had come under intense scrutiny, and had held that no offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act is made out if there is no direct “skin-to-skin contact between accused and the victim.
The bench, also comprising Justices S Ravindra Bhat and Bela M Trivedi, discussed threadbare the definition of section 7 of the POCSO Act which deals with the offence of sexual assault against the children.
The provision says: “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.”
“So, therefore, the primary thing is that if the sexual intent is proved then everything will fall in place,” the bench orally observed while expressing its reservation on the interpretation made by the high court.
Senior advocate Siddhath Luthra, appearing for the convict in the case as an amicus curiae, referred to the contents of the provision and said that there were issues with the first part of the provision which said if an accused, 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” then the offence of sexual assault is made out.
However, the second part of the provision said that for constituting the offence of sexual assault, an accused has to commit an act “which involves physical contact without penetration” and here the “skin-to-skin” interpretation creeps in.
Luthra said the second part “requires sensitive interpretation”. One must rely on different situations to see whether a given interpretation logically holds and when an offence has been clearly laid down then if there was any need to stretch one's reasoning and rely on other provisions, the bench said.
“One must look at things from the victim's perspective. If a pen is used to poke a person, there is no skin-to-skin touch and according to arguments advanced there is no sexual assault. But there is an invasion of privacy and violation of modesty of the child,” it said.
"If we accept the submission (on physical contact without cloth), what kind of results will we get. According to us, the results will be disastrous,” it observed.