{SECTION 7 OF POCSO ACT AND SECTION 354 OF THE IPC} The Nagpur bench of the Bombay HC absolved a man charged under the POCSO Act and convicted him under ‘minor offence’ of the IPC. The bench said, “There is no direct physical contact i.e. skin to skin with sexual intent without penetration.” (Satish Vs State of Maharashtra in Cr.A. 161/ 2020)
December 14, 2016, the mother of a minor lodged a complaint in Gittikhadan, Nagpur police station stating that “alluring the minor on pretext of giving her guava in his house, Ragde groped her breast and attempted to remove her salwar”. The mother of the minor reached the spot and rescued her daughter who was crying. The minor told her mother that when the man tried to remove her salwar, she started crying but he put his hand on her mouth and stopped her. The police filed an FIR under Sections 354 (assault to woman with intent to outrage her modesty), 363 (kidnapping), 342 (wrongful confinement) of the IPC and Section 8 (sexual assault) of the POCSO Act. The special court framed additional charges under Sections 361 (kidnapping from lawful guardianship) of the IPC, along with the before-mentioned charges. Bench of Justice Pushpa Ganediwala heard the criminal appeal filed by Ragde challenging an order passed by the Additional Sessions Judge, Nagpur, who convicted him and sentenced him to 3 years of imprisonment. The High Court on 19th January, held, “Considering the strict nature of punishment provided for the offence, 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 the top and pressed her breast, would not fall in the definition of sexual assault.” The court made remark that, “It is the basic principle of criminal jurisprudence that the punishment for an offence shall be proportionate to the seriousness of the crime committed.” The bench absolved the convict under POCSO Act and convicted him under the IPC. “In the opinion of this court, the alleged act fit into the definition of offence under section 354 of IPC,” the order stated. A 12-year-old girl been groped by a 39-year-old man in December 2016. After four years, the Nagpur bench of the Bombay HC of Justice Pushpa Ganediwala found that the accused groped the child but it does not account as sexual assault under POCSO. Instead it constitutes the offence of outraging a woman’s modesty under IPC section 354. Only because the girl had her top on and since there was no “skin to skin contact”, the groping could not be ruled as an assault. The correctness of the Court of Justice here in is highly dubious. The fact that the man deliberately caught hold on the breast of a child of 12 years. And that the court convicted him under section 354 IPC which means that his intention was established i.e. it was not accidental or unintentional touch. The act was an ‘intentional assault with sexual intent’. Therefore, the offence would come under section 7 of the POCSO Act. The consideration under section 354 of IPC is different altogether. The orientation in that section is the modesty of the woman. Modesty is a virtue similar to womanhood. An offence under section 07 of the POCSO Act involves two things. The sexual desire of the accused and the resultant injury caused to the body of the ‘CHILD’ (regardless of gender) Hence, this section cannot be equated with a sexual assault coming under section 354 of IPC. Section 354 A (1) (i) states, “Physical contact and advances…” It does not speak ‘about sexual intent’ as in the case of section 7 of the POCSO Act. On paper the offence under section 07 of the POCSO Act and Section 354 of IPC works in two different situations, although in practical situation they may overlay each other. Based on the facts of the case discussed here, it is more logical and just that the offender is liable to be punished under Section 08 of the POCSO Act and not under section 354 of IPC. While the judgement is dangerous in its interpretation of sexual assault, it also indicates sign of the problem that courts are facing with laws mandating punishment for sexual crimes with a ‘one-size-fits-all’ approach, but this still isn’t a good enough justification for such perplexing judgement. After the verdict, people started slamming the court for the judgement, some were even shocked to hear the judgement came from a female judge. A Twitterati even wrote, “I was whimsically thinking that women judges will be sensible and less prejudiced.” Also, the apex child rights body, NCPCR (National Commission for Protection of Child Rights), asked Maharashtra government to file an urgent appeal against the High Court judgment that ruled that an act cannot be termed as sexual assault if there is no “skin-to-skin” contact. In a letter to the Maharashtra chief secretary, NCPCR Chairperson wrote the judgment needs to be reviewed and the state should take note of this as it seems to be disparaging to the minor victim in the case.
STAND POINT
A sexual assault is a sexual assault, regardless of skin-on-skin or no skin.
The judgement ruled by the Bombay HC is misogynistic and sexist in so many ways and it will set a precedent that’ll make this country more terrifying than it already is.
The court overlooked that the POCSO Act is a gender-neutral statute. But section 354 IPC is woman oriented. i.e. in the POCSO Act, both girl and boy can be victims but under section 354 IPC, only woman can be a victim.
The convict had touched the child as no girl should be touched. An assault, that too a sexual assault, is something we recognize without needing a definition.
Section 7 of the POCSO Act, reads:
“Sexual assault – 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 minor told the court that Ragde “tried to remove her salwar and pressed her breast”. Any reading of Section 7 will conclude that this act was, hence, a sexual assault. Since, Ragde touched the “breast of the child”, this was certainly a “physical contact without penetration”, and there was “sexual intention”.
But here the judgement has a perplexing interpretation that: “The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether her top was removed or whether he inserted his hand inside her top and groped her breast, would not fall in the definition of ‘sexual assault’.”
It is infuriating that the judgement reads: “There is no direct physical contact i.e. skin to skin with sexual intent without penetration.”
The word “skin” does not come into sight anywhere in the Act. And what’s even more perplexing is how, when a man gropes a woman’s breast as Satish Ragde did to this minor, is actually not “direct physical contact”.
After all being draped in clothes doesn’t make harassment any less traumatic. It is utterly offensive to say that sexual assault does not take place with clothes on. Think of all the women who get molested in public places every minute as we count.
Let’s just consider a hypothetical situation, if the offender is using a glove for touching the naked body of a child, then also the offence under the POCSO Act cannot come into effect and potency because technically there is no skin to skin contact.
This kind of a definition of what constitutes as a sexual assault is not only unfair but also deeply damaging to how the future cases of groping will be treated in courts. The judgement will further hamper the mind-set of children to report sexual crimes, it is already difficult for minors to come up and report sexual crimes, and this only “skin-on-skin” concept will make them even more anxious.
To avoid more chaos as such in future, The Parliament must amend the laws so that there is no ambiguity in between the line, the jargons are often used as loopholes and hence empowers the abusers instead of the victim. The onus must be shifted upon the culprit to prove the innocence in every offence against minors, as minors are often unable to fill in the details also the benefit of doubt to must be there for the minor victims.