Sujamol Jaimon 5th year BBA LLB, School of Indian legal thought, MG University Kerala

Introduction

The case deals with an appeal filed by the accused before Nagpur bench of Bombay High court against the judgement and order dated 05/02/2020 in special child protection case no.28 of 2017 passed by the extra joint Additional Sessions judge Nagpur. The accused had wrongfully confined a minor girl aged 12yrs in order to commit rape against her. He had touched private parts of minor girl and had tried to remove her salwar suit just when he was stopped by the girls mother.

In this case the accused has been convicted for the offense of outraging women’s modesty, wrongful confinement and kidnapping under section 354,352 and 363 of IPC. And for sexual assault under section 8 of POCSO Act with rigorous imprisonment for 3 years and fine. The offender had moved to the High court against the order passed by the Special Court.

Background of the case

The POCSO Act is a law which provides a special protection to the minor victim beyond IPC. The object of the POCSO Act is to protect children from sexual assault and harassment and acknowledge the vulnerability of the minor because of the minor victims physical and mental vulnerability and the abusers capacity to overcome them easily, sexual assaults against minors are particularly tough.

The case of sexual harassment against at 12yrs old girl. The Joint Additional Sessions Judge of Nagpur had taken note of the circumstantial evidence as well as the testimony of the witnesses: The special court sentenced the accused to undergo rigorous imprisonment for 3 years and to pay fine of Rs.1500/- after recording his conviction under the section 342,363 and 354 of IPC and section 8 of POCSO Act.

Facts of the case

On 14/12/2016 the prosecutrix aged about 12yrs went to bring guava, but did not returned for a long time, the mother went out to search for her, their neighbour notified the mother that she had seen the accused bringing the prosecutrix to his residence and showed her his residence. The mother reached the house and asked the accused about the whereabouts of her daughter which he denied to be known. The mother then suspected and searched the house of the accused. While searching the first floor, she found her daughter crying in a room locked from outside. The mother took her outside. The prosecutrix was frightened and soon she narrated the whole scene to her mother that the accused on the pretext of giving her guava, took her in his house and pressed her breast and she shouted when he attempted to remove her salwar. Immediately, the mother lodged FIR against the accused. Police after conducting an investigation filed the charge sheet before the Special POCSO Court, Nagpur.

The Special Court convicted the accused under sections 354, 363 and 342 of IPC for outraging girls modesty, Kidnapping and wrongful confinement & under section 8 of POCSO Act for sexual assault and punished him with rigorous imprisonment for 3yrs  with fine Rs.500/-.

Issues

1. Whether the Accused shall be held guilty for sexual harassment under section 7 and 8 of POCSO Act?
2. Whether pressing prosecutrix breast without having a skin to skin contact be considered under the definition of sexual assault provided in section 7 of the POCSO Act and punishable under section 8 of the POCSO Act?
3. Whether “Attempt to remove salwar” of the prosecutrix would fall within the definition of ‘sexual assault’ defined under section 7 and punishable under section 8 of the POCSO act?

Arguments from the Appellant Side

• The learned counsel of the Appellant argued vehemently against the minor girl’s mother’s testimony. He argued that she was a hearsay witness and has not witnessed the incident by herself. Hence her testimony may have some loopholes which might project that the crime committed was of brutal manner.
• The learned counsel also contended over the girls mental ability, which was noted by learned trial court when recording her evidence. He contented that based on the minor girls behavior she may possibly lack mental intelligence.
• The learned counsel of the Appellant contended that the prosecution proven conduct of pressing of breast falls under the scope of sexual assault under section 7 of the POCSO Act cannot be accepted. As it is not the prosecution’s argument that the appellant removed her top and touched her breast. As a result there is no direct physical contact; skin to skin with sexual intent without penetration.

Arguments from Respondents Side

• The learned counsel for state, provided the testimony of the three witnesses i.e., the minor girl, her mother and their neighbor
• A consideration of the minor’s and her mother’s testimony on the point of incident reveals that both witnesses agree that the appellant touched the prosecutrix breast and tried to remove her salwar.
• The learned counsel also read out the definition of Sexual Assault under section 7 of POCSO Act. Which clearly states that a ‘physical touch’ with ‘Sexual intent’ without penetration is a necessary component of the offense.
• Also the phrase ‘any other act’ embraces the type of the acts that are comparable to the actions expressly stated in the definition on the basis of the concept ‘ejusdem generis’. The Act should be of the sort or close in nature to the previous one. Hence the acts of the accused fell under the definition of section 7 of POCSO Act and he should be punished for the offence of Sexual Assault under section 8 of the POCSO Act.

Judgement

The court mentioned that the learned counsel was unable to establish from the record that the testimony of the minor girls mother and the minor girl could not be considered or they were not competent witnesses. The responses of the girl to the questions were not illogical. Moreover she told her mother about the event immediately after it happened; and on that basis; the FIR was filed.  The testimonies of both mother and daughter are consistent and valid under Section 6 of the Indian Evidence Act. i.e., Principle of Res gestae would be applicable.

The court also considered that as per the definition of sexual assault a physical contact with sexual intent without penetration is essential ingredient for the offense and the court believed that the stronger proof and severe allegations are necessary.  Court also stated that whether the accused removed the top of the prosecutrix or inserted his hand while groping her breasts is unknown; which would not constitute a direct physical contact or skin to skin contact between the accused and the victim as per Section 7 of the POCSO Act. The act committed by the accused would apparently fall under the definition of ‘Outraging the modesty of women’ provided under Section 354 of IPC.

The bench acquitted the accused under Section 8 of POCSO Act and convicted him for Outraging the modesty and wrongfully confining the prosecutrix under Sections 354 and 342 of IPC for a period of 1 year of rigorous imprisonment and a fine of Rs.500, also a non bailable warrant was issued against the accused.

Conclusion and Analysis

The judgement passed by the Additional Judge J.Pushpa Ganediwala, has generated outrage on social media. As many people have questioned how it may impact the general understanding of sexual assault and would it let perpetrators get away with a clear intention of assaulting the minor but can’t be proven under ‘Sexual Assault’ with less severe punishment.

Bombay High court’s interpretation as a result reduced the punishment of the accused should have been be convicted with severe punishments directed under the POCSO Act, as the minor is more vulnerable. Therefore the given interpretation of the court goes against the basic idea of the statute.

The court reading the requirement of a skin to skin contact as a pre condition to constitute the offense of Sexual assault under Section 7 of the POCSO Act is problematic for multiple reasons.

1. The statue is silent on the requirement of a skin to skin contact. The relevant part of Section 7 merely say that “or does any other Act with Sexual intent which involves physical contact without penetration is said to commit sexual assault”. The court had wrongly interpreted physical contact to mean skin to skin contact.
2. Section 7 begins with the phrase “whoever with sexual intent touches…”. The term touch too does not imply only skin to skin contact. Thus since it clearly established that the accused pressed the victim’s breast, the offense of sexual assault was complete, irrespective of whether the molestation was over or under the clothes.
3. Also the legislature wished to restrict the scope of Section 7 it would have explicitly mentioned the requirement of a skin to skin contact. Therefore the Court cannot apply an interpretive methodology to severely restrict the punitive scope of this section and trivialize legal provisions aimed at providing deterrence against instances of sexual assault against children.

Also while passing the judgment, the bench has not given much consideration to the intentions of the accused and the fact that victim is a minor girl and is entitled to greater protection from sexual offenses. Also in the case of Jagar singh v.State of himachal pradesh, it was well settle that when two interpretations are possible, then the interpretation in favour of the minor should be adopted by the court to meet the ends of justice.

Furthermore the Judgement would have been applicable in the absence of POCSO Act. The period before POCSO Act was similar to the one witnessed by the order passed by the Bench. In the pre- POCSO period the law that governed sexual assault was IPC, which does not treat children under any special provision and same as adults.

If the POCSO Act was not amended the minor would have been abused more vulnerably as they are innocent and unaware of such offenses. Also any non –penetrative sexual assault or against a boy would not have been established under the provisions of IPC. In the absence of POCSO Act, there would be no law penalizing any child pornography and the offenders would have fled easily. The POCSO Act has created a barrier for the offenders with stringent punishments and wide scope of the sections in them which makes it difficult to escape from the punishment.

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