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Skin to Skin Contact: Temporary Relief from A Bad Precedent and Conflict of Laws

The Supreme Court staying the judgement of the Bombay High Court passed in Satheesh Vs State of Maharashtra in Criminal Appeal 161/ 2020, has made headlines. (The Print. (2021).Supreme Court stays Bombay HCs no skin touch, no sexual assault verdict in POCSO case

The case itself has made headlines for all the wrong reasons, mainly for its legal incorrectness and the potential for it to be a really bad precedent. It cannot be understated how important the stay of the judgement by the apex court truly was.

In Satheesh Vs State of Maharashtra, the Bombay High Court acquitted the accused/appellant under Section 7 r.w. 8 of POCSO Act and instead convicted the accused under Section 354 of the Indian Penal Code, 1860 (IPC). The accused was held guilty of trying to remove the salwar and pressing the breast of the victim. Justice Puspha V. Ganediwala observed that when there was no specific detail about the top of the 12 year old victim being removed, the act of the accused pressing her breasts would not fall under sexual assault defined under Section 7of the POCSO Act (Section 7).

It would instead constitute the offence of outraging a womans modesty under Section 354 of the IPC (Section 354). The court opined that since the victims top was not removed thus the act would not fall under the definition of sexual assault as,… there is no direct physical contact i.e. skin to skin with sexual intent without penetration.

The court relied on the principle of proportionately in terms of punishment, observing that Section 354 carried a minimum prison sentence of 1 year, while Section 8 of the POCSO Act (Section 8), which convicted a person for sexual assault, carried a minimum prison sentence of 3 years. Justice Gandiwala commented… the punishment for an offence shall be proportionate to the seriousness of the crime. The court held that the actions of the accused fall under Section 354 and stated that the punishment must be proportionate to that act.

Bad Precedent
To understand how the skin to skin contact reasoning is a bad precedent, look at how sexual assault is defined under Section 7:

Section 7, POCSO Act:
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.

Looking at the provision, the ingredients of sexual assault are(a) the presence of sexual intent, (b)touching of the private parts of a child mentioned in the section or making a child touch those private parts of the accused, (c) or any other act with sexual intent involving physical contact without penetration.

In Ravi v. State (2018) SCC OnLine Del 11182, the Delhi High Court held that catching the' hand of a child with sexual intent constitutes sexual assault.

The Kerala High Court in Crime No.503/2014 Of Kumbla ... vs By Adv. Sri.Kodoth Sreedharan CRL.A.No. 898 of 2015, convicted a salesman for sexual assault under Section 7 for catching hold of the victim and trying to embrace her when she got him a glass of water.

The court observed that this action comes under the second part of Section 7 i.e. …constituting any act done with sexual intent, involving physical contact. The Sikkim High Court in Damber Singh Chettri v. State of Sikkim MANU/SI/0046/2018, while upholding a conviction under Section 7 r.w. 8 for sexual assault commented that,Mere touch would not result in injury but coupled with sexual intent it would bring home the offence.

The Karnataka High Court in Nagappa @ Nagaraj vs The State Of Karnataka Criminal Appeal No.200080/2018, held that the actions of the accused of taking the victim on his motorcycle to a land and tying her hands and feet did constitute sexual assault as the accused was attempting to commit rape, though this was interrupted by another witness and a case was not made out that the clothing of the victim was removed. What is clear in all these judgements when trying to make out an offence of sexual assault under Section 7, emphasis is applied on the presence of sexual intent by these jurisdictions.

The presence of sexual intent would make the physical contact by an accused fall under Section 7. The Bombay High Court however has erroneously stressed on the element of physical contact, more so direct physical contact i.e. skin to skin contact, even though the court did not observe that sexual intent was absent. To a person reading the facts, the actions of the accused in tying to remove the salwar and pressing the victims breasts shows a presence of sexual intent which should attract Section 7 as evidenced by the other referenced cases.

However the Bombay High Court seems to have observed that as it could not be made out that the top of the victim was removed, it could not be said that there was direct physical contact without penetration, completely negating the element of sexual intent.

Conflict of Laws
The Bombay High Court convicted the accused under Section 354 which reads as follows:
Section 354,IPC: Assault or criminal force to woman with intent to outrage her modesty. - Whoever assaults or uses criminal force to any woman, with the intention to outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.

What is very clear from a bare perusal of the provision is that it is specifically for a woman whereas the POCSO Act was created for the protection of children as a whole, irrespective of sex or gender. Hence, Section 7 is a gender neutral provision while Section 354 was written for women victims. This begs the question of what if in the factual matrix, the victim was a minor male? What would the Bombay High Court have held then? For instance, if the victim was a 12 year old boy and the accused had tried to press his anus while the boy was still clothed, there cannot be a conviction under Section 354 as the victim is not a woman.

Touching either the anus or breasts of a child with sexual intent falls under Section 7. Vagina, penis, breast, anus are all included in Section 7. If, pursuant to this judgement, had a Maharashtra Special Court (POCSO) or a different bench of the Bombay High Court held an accused guilty under Section 7 for pressing the anus, with sexual intent, of a fully clothed 12 year old boy then there will be a differential treatment of different private parts of a childs body under Section 7.

In other words, when the breast of a woman are touched with the top on, the case falls under Section 354 for outraging a womans modesty but when the anus of a boy is touched with shorts or pants on, the case goes to Section 7 for sexual assault. This can not only amount to gender discrimination but also lead to treating the breast and anus differently, making the provision discriminatory within itself. If the accused however had pressed the anus of a girl, with sexual intent, while she was clothed, how would courts deal with that? Would that fall under Section 354 or Section 7? How will lower Courts (POCSO) of Maharashtra be able to deal with such legal conundrums?

This will lead to judicial grey areas and potentially loopholes by which lawyers for accused persons in Maharashtra might be able to use Satheesh Vs State of Maharashtra as a judicial precedent to argue for acquittal and avoid punishment for sexual assault under Section 8 of POCSO.

Conclusion

It must be kept in mind that POCSO was created pursuant to Article 15 of the Indian Constitution which gives the state powers to make special provisions for the protection of children. Children is to be seen as a gender neutral term. The judgement of the Bombay High Court has the potential to be a very bad precedent as it factors direct physical contact to be the main requirement for sexual assault under Section 7, rather than the presence of sexual intent.

And it can further lead to gender discrimination and differential treatment of the different private parts listed under Section 7, making the provision self discriminatory. This will lead to a very dangerous situation for all children in Maharashtra if lower courts were to use this as precedent, and the legal intent behind the POCSO Act will be negated. Thus it is vital that the apex court has stayed the aforesaid judgement of the Bombay High Court and it is even more vital that it is overturned.

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