Bombay High Court On ‘Sexual Assault’ As Defined Under POSCO Act

KEY TAKEAWAYS 

The Nagpur bench of Bombay High Court held that groping a child's breasts without 'skin-to-skin contact' amounts to molestation under the Indian Penal Code, but not 'sexual assault' under the Protection of Children from Sexual Offences (POCSO) Act.

The hearing before the Court disclosed that the accused had allegedly taken a minor girl to his house under the pretext of offering her a guava and pressed her breasts and partially stripped her.

An FIR was lodged by the mother of the minor against the accused. The accused was convicted by trial court under the POCSO Act and IPC, where he was held guilty under sec. 354 (outraging modesty of a woman), 363 (kidnapping), ad 342 (wrongful restraint) under the IPC and sec. 8 of POCSO Act. However, the accused further approached the high court contending the allegation. 

PROVISION UNDER THE ACT

Section 7 of the POCSO Act defines 'sexual assault' as an act of touching the private parts of the child or making the child touch the private parts of the accused or any other person, or any act with a sexual intent involving physical contact without penetration. Therefore, the two essential ingredients – sexual intent and 'physical contact' with the private parts. The Court interpreted the words 'physical contact' under sec. 7 of POCSO Act as 'skin-to-skin contact with sexual intent without penetration.'

The single-judge bench of Justice Pushpa Ganediwala examined sec. 7 of the said act and held that stricter proof and serious allegations would be required in relation to the nature of punishment, since 'the punishment for an offence shall be proportionate to the seriousness of the crime.'

The order passed by the bench reads:

“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 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 sec. 354 of the Indian Penal Code… Admittedly, 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.”

As per the report, sec. 8 under the POCSO Act penalizes sexual assault with an imprisonment of 3 to 5 years, whereas the minimum punishment for outraging the modesty of a woman under sec. 354 of IPC is only 1 year. 

IS THIS READING OF LAW UNUSUAL?

Surprisingly, such restrictive verdicts have not been uncommon, especially in POCSO cases. In 2014, a Delhi court, in State v. Bijender, acquitted a man under the POCSO Act and instead convicted him of IPC offences. A 7-year-old girl had testified that the convict forcibly took her into the bathroom, slapped her, and tore her jeans. The Special Court held that the act of 'tearing clothes' of the victim did not constitute physical contact even if sexual intent was present, thus acquitting the accused of sec. 8 under POCSO.

This was held despite the observation of 'any other act with sexual intent which involves physical contact without penetration' as sexual assault under sec. 7 of the said act. The court restrictively interpreted the lack of physical contact with the sexual organs as 'no physical contact.' 

MANDATORY MINIMUM SENTENCE UNDER POCSO ACT

Sec. 8 of POCSO Act carries a sentence of rigorous imprisonment of 3-5 years. However, imposing minimum sentence is mandatory. Courts do not hold discretion to pass lighter sentences irrespective of circumstances presented by the convict if a statute prescribes a minimum sentence. Minimum sentences have been prescribed for all sexual offences under the POCSO Act, except sexual harassment. A mandatory sentence is prescribed to highlight the severity of the offence, and is often claimed to act as a deterrent to a crime. They are also prescribed in a few cases to eliminate the scope for arbitrariness on the part of judges using their discretion.

Studies have observed that mandatory sentencing in laws at times leads to fewer convictions, because if judges perceive that the punishment for the offence is harsh, they prefer acquitting the accused instead. After the conviction, a separate hearing is conducted to award the sentence, where the aspects of the accused being a first-time offender with potential for reformation, being the sole earner of the family, or the accused's age and social background, etc. are considered. In the lack of opportunity to consider such factors, judges incline towards acquitting the accused instead of prescribing a mandatory sentence. 

CONCLUSION

Apart from defying the principle behind the said provision (sec. 7 of POCSO Act), the judgement sets a bad precedent as the interpretation of 'physical contact' that could ultimately be used to dilute the provisions in other similar statutes by extension of ejusdem generis. It sustains potential to inflict a severe blow on the progress made by the feministic jurisprudence over the years that led to the expansion of ambit of such provisions to ensure the security of women.

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