October 4, 2022

Skin to Skin Case- Analysis

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.

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

                                           (Quoted by Supreme Court from Lewis Caroll’s Alice in Wonderland)

Today, Supreme court set aside the ‘skin to skin judgement’ of Bombay high court. We analysed the judgment of supreme court and presenting you the facts, legal procedure, and supreme court’s observation in simple way.

Facts of the Case

On 14Dec 2016 at about 11.30 a.m., a 12 years old girl (victim) had gone out to obtain guava. When she did not come back for a long time, girl’s mother went in search of the victim. A lady who was staying nearby, told her that neighbouring person (the accused) had taken her daughter in the house.

When mother went to the house of the accused. The accused at that time came down from the first floor of his house. When she made inquiry about her daughter, the accused told her that she was not in his house. The mother, however, barged into the house of the accused to search her daughter as she heard the shouts coming from a room situated on the first floor. She went to the first floor and found that the door of the room was bolted from outside. She opened the door and found her daughter who was crying in the room.

On making inquiry as to what had happened, her daughter told her that the accused had asked her to come with him and told her that he would give her a guava. He took her to his house. He then pressed her breast (fact that arisen skin to skin contact) and tried to remove her salwar. At that time, the victim tried to shout but the accused pressed her mouth. The accused thereafter left the room and bolted the door from outside.

The mother, went to the Police Station along with her daughter to lodge the complaint.

When the police rushed to the spot, they saw that the accused was trying to commit suicide by hanging himself. He, therefore, was sent to the hospital for treatment.

Case at Trial Court

The Extra Joint Additional Sessions Judge, Nagpur (Special Court), on 5th February, 2020, convicted and sentenced the accused-Satish for the offences under Sections 342, 354 and 363 of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (For short POCSO Act).

Appeal at High Court

The accused-Satish had preferred an appeal in the Bombay High Court, Nagpur Bench. And the high court disposed the appeal on 19th January 2021, by acquitting the accused for the offence under Section 8 of the POCSO Act, and convicting him for the offence under Sections 342 and 354 of the IPC.

The accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 500/- in default thereof to suffer R.I. for one month for the offence under Section 354 and to undergo imprisonment for a period of six months and to pay fine of Rs. 500/-, in default thereof to suffer R.I. for one month for the offence under Section 342 of IPC.

Honourable High Court made following observation while deciding the case-

“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 also be liable to fine.

Considering the stringent nature of punishment provided for the offence, in the 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 details as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’. It would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code.

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.”

Appeal in Supreme Court

Three appeals were filed against this decision in the supreme court by Attorney General for India, National Commission for Women, and the state of Maharashtra. Accused-satish also filed an appeal against his conviction.

This case involved the question of interpretation of section 7 of POSCO Act, there was also another case (state of Maharshtra v. Libnus) of sexual assault which involved the same question, so, Supreme court clubbed together both cases.

Lawyers in the Case

Attorney General for India Mr. K.K. Venugopal, senior advocate Ms. Geeta Luthra appearing for the National Commission for Women, the learned advocate Mr. Rahul Chitnis appearing on behalf of the State of Maharashtra, the learned amicus curiae Mr. Siddharth Dave to assist the Court and the learned senior advocate Mr. Siddharth Luthra appearing on behalf of The Supreme Court Legal Services Committee for the accused–Satish and the accused Libnus.

Analysis: Supreme court’s Observations

The Protection of Children from Sexual Offence Act, 2012 (POSCO) has been enacted to protect the children from the offences of sexual assault, sexual harassment and pornography and provide for establishment of special courts for trial of such offences and for the matters connected therewith or incidental thereto.

In India, the Law Commission’s 146th report (1993), 156th report (1997) and 172nd report (2000) dealt with some of these and associated issues. The 172nd report recommended changes to the definition of rape, expanding its scope, and also incorporating the expanded definition of sexual assault. These, and India’s ratification of the UN Convention on the Rights of Children, 1992 (which required nation states to adopt suitable legislation to combat coercion of children in sexual activity, exploitative use of children and children’s exploitation for pornography), formed the background and basis for enacting POCSO.

Section 7 of POSCO Act: Bone of Contention

Section 7 of the POSCO Act, pertaining to “sexual assault” reads as under:

“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.”

Object of Legislation and true intention of the legislature

Court said that It is trite saying that while interpreting a statute, the courts should strive to ascertain the intention of the Legislature enacting it, and it is the duty of the Courts to accept an interpretation or construction which promotes the object of the legislation and prevents its possible.

In previous cases also, Supreme court emphasised to take note of the intention of legislature and object of the legislation while interpreting any provision.

In the case of J.P. Bansal vs. State of Rajasthan & Anr.[1], Supreme court observed that, a statute is an edict of the legislature. The elementary principle of interpreting or construing a statute is to gather the mens or sententia legis, the true intention of the Legislature.

In the case of Balaram Kumawat Vs. Union of India & Ors.[2]  Supreme Court while elaborately discussing the basic rules of interpretation observed as under:

“Contextual reading is a well-known proposition of interpretation of statute. The clauses of a statute should be construed with reference to the context vis-à-vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject-matter. The rule of “ex visceribus actus” should be resorted to in a situation of this nature.

In State of W.B. v. Union of India[3], the learned Chief Justice stated the law:

“The Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs.”

The said principle has been reiterated in R.S. Raghunath v. State of Karnataka[4].

Thus, the purpose of the law is not to allow the offender to sneak out of the meshes of law. Criminal jurisprudence does not say so.

Object of POSCO Act and Section 7

Object of the act

So far as the object of enacting the POCSO Act is concerned, the POCSO Bill intended to enforce the rights of all children to safety, security and protection from sexual abuse and exploitation, and also intended to define explicitly the offences against children countered through commensurate penalties as an effective deterrence.

Section 7

Section 7 of the act is in two parts.

The first part of the Section mentions about the act of touching the specific sexual parts of the body with sexual intent.

The second part mentions about “any other act” done with sexual intent which involves physical contact without penetration.

‘Touching’ and ‘Physical Contact’ have been interchangeably used in Section 7 by the legislature. The word “Touch” has been used specifically with regard to the sexual parts of the body, whereas the word “physical contact” has been used for any other act. Therefore, the act of touching the sexual part of body or any other act involving physical contact, if done with “sexual intent” would amount to “sexual assault” within the meaning of Section 7 of the POCSO Act.

The word “Touch” as defined in the Oxford Advanced Learner’s Dictionary means “the sense that enables you to be aware of things and what are like when you put your hands and fingers on them”

The word “physical” as defined in the Advanced Law Lexicon, 3rd Edition, means “of or relating to body……….” and the word “contact” means “the state or condition of touching; touch; the act of touching……”.

The expression ‘physical contact’ used in Section 7 has to be construed as ‘skin to skin’ contact cannot be accepted. As per the rule of construction contained in the maxim “Ut Res Magis Valeat Quam Pereat”, the construction of a rule should give effect to the rule rather than destroying it. Any narrow and pedantic interpretation of the provision which would defeat the object of the provision, cannot be accepted.

It is also needless to say that where the intention of the Legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result.

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.

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 the “sexual intent” and not the “skin to skin” contact with the child.

The purpose of the law cannot be to allow the offender to sneak out of the meshes of law.

Assumptions in POSCO Act

It may also be pertinent to note that having regard to the seriousness of the offences under the POCSO Act, the Legislature has incorporated certain statutory presumptions.

Section 29 permits the Special Court to presume, when a person is prosecuted for committing or abetting or attempting to commit any offence under Section 3, 5, 7 and Section 9 of the Act, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.

Similarly, Section 30 thereof permits the Special Court to presume for any offence under the Act which requires a culpable mental state on the part of the accused, the existence of such mental state.

DECISION

Supreme court Decided that High Court fell into error in case of the accused-Satish in holding him guilty for the minor offences under Sections 342 and 354 of IPC and acquitting him for the offence under Section 8 of the POCSO act.

So far as Section 7 of the POCSO Act is concerned, the first part thereof exhausts a class of act of sexual assault using specific words, and the other part uses the general act beyond the class denoted by the specific words. In other words, 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, would be committing an offence of “sexual assault”.

Similarly, 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 Section 7 of the Act.

The Accused-Satish is hereby convicted for the offences punishable under Section 8 of the POCSO Act and under Sections 342, 354 and 363 of the IPC. He is directed to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.500/- and in default thereof to suffer simple imprisonment for a period of one month for the offence under Section 8 of the POCSO Act. Since he has been sentenced for the major offence under Section 8 of the POCSO Act, no separate sentence is imposed upon him for the other offences under the IPC.


[1] AIR (2003) SC 1405

[2] (2003) 7 SCC 628

[3] AIR at p. 1265, para 68

[4] (1992) 1 SCC 335

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