FACTS of the Skin to Skin Contact Case
According to the case of the prosecution on December 14, 2016, the accused, took the young girl to his house on the pretext of giving her guava, pressing her breast, and attempting to remove her salwar. At that point in time, the mother reached the spot and rescued her daughter. An FIR was registered almost immediately. The prosecution examined five witnesses, the mother, a survivor, a neighbor who heard the child scream for her mother, and two police officers.
The Session court held him guilty under sections Sections 354, 363 ( kidnapping ), and 342 ( wrongful restraint ) of the Indian Penal Code and Section 8 of the Protection of Children from Xxxual Offences Act, 2012, ( hereinafter referred to as POCSO Act ).
Bombay High Court
Section 7 of the POCSO Act defines Xxxual assault as Whoever, with Xxxual 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 Xxxual intent which involves physical contact without penetration is said to commit Xxxual assault.
The court interpreted the words ” physical contact ” in the definition of Xxxual assault to mean ” direct physical contact- direct physical contact i.e. skin-to-skin contact with Xxxual intent without penetration. ” The act of pressing breast can be a criminal force to a woman/girl with the intention to outrage her modesty. ( Sec 354, IPC ) ” It is the basic principle of criminal jurisprudence that the punishment for an offence shall be proportionate to the seriousness of the crime “, the court held.
The aftermath of the Judgment of Skin to Skin Contact Case
The Supreme Court stayed the acquittal of the accused in the present case. The order was passed by a bench headed by the Chief Justice of India on a mention made by the Attorney General, KK Venugopal. Attorney General KK Venugopal submitted that the judgment which held that ‘ skin to skin ‘ contact is necessary for xxxual assault under POCSO Act is ‘ unprecedented and is ‘ likely to set a dangerous precedent.
CJI Bobde has directed AG to file a proper petition challenging the judgment, The Court has stayed the acquittal of the accused under Section 8 of POCSO and issued notice to him returnable within 2 weeks.
The POCSO Act is a gender-neutral statute. But section 354 IPC is woman-oriented. In other words, in the POCSO Act, both girls and boys can be victims. In 354 IPC, only a woman can be a victim. In a case where the accused, with xxxual intent, touches the penis or anus of a male child, the offender should be made liable for punishment. If the view taken by the Bombay High Court is accepted, then no punishment is possible since section 354 IPC does not include a ‘ male ‘ victim.
Sec 354 relates to the modesty of the woman and not the body of the woman. Someone can outrage the modesty of a woman without even touching her. Whereas, the POCSO Act is a victim-oriented statute. The injury caused to the person of the victim assumes more importance. Here, the body plays an important role. The act alleged was nothing but an ‘ intentional assault with xxxual intent ‘. Hence, the offence would come u / s 7 of the POCSO Act.
Satish Ragde Vs. State of Maharashtra ( 2021 ) No ‘ xxxual Assault ‘ if there is no skin-to-skin contact even with xxxual intent- A controversial Judgment of Bombay High Court.
A 12-year-old girl was taken away by the accused to his house under some false pretexts. The accused tried to disrobe her dress. the mother of the girl reached the spot and rescued her daughter. A complaint was made to the police station.
At the Trial Court, the accused was convicted under Section 354, 363, and 342 of 354 of IPC and Section 8 of the POCSO Act and was sentenced to three years of imprisonment for xxxually assaulting a minor girl. Being aggrieved, the accused filed an appeal before the Nagpur Bench of High Court Bombay for acquittal of the charges under Section 8 of the POCSO Act.
The High Court modified the order of Sessions Judge and acquitted the accused from the charge of xxxual assault under Section 8 of the POCSO Act and upheld the conviction under Section 354 of IPC. The Court observed that the prosecution failed to make a case that the accused removed the dress of the girl child before molesting her, and as such there was no physical contact i.e. skin to skin with xxxual intent without penetration.
Under Section 7 POCSO Act, the punishment is 3 years. Section 354, IPC, the minimum punishment is 1 year. The modification of judgment resulted in the accused imprisonment for 1 year instead of three years. The judgment was criticized by people as a ‘ dangerous precedent’.thus the order was stayed by Supreme Court .ourt