Skin to Skin Contact

Author: Nishita Kukreja, Second year, BLS-LL.B. Pravin Gandhi College of Law.

A recent judgement passed by the Nagpur Bench of the Bombay HC has made headlines and caused an uproar due to its peculiar reasoning. The case involved a young 12-year-old girl, who was lured by a man under the pretence of providing a guava, and then groped her breasts and tried to remove her salwar. When the child resisted the same, he fled, locking her in the room for her mother to find. Upon learning these facts, the mother immediately filed an FIR under sections 354 (outraging the modesty of a woman), 363 (kidnapping) and 342 (wrongful confinement) of the Indian Penal Code (“IPC”) and section 8 (sexual assault) of the Protection Of Children from Sexual Offences Act (“POCSO Act”).
The trial court convicted the accused under all sections, post which the same was appealed in the High Court. Justice Ganediwala, while upholding the convictions under IPC, acquitted the appellant under Section 8 of the POCSO Act. The reasoning provided was that since the appellant did not “remove the top” of the child, no “skin-to-skin contact” occurred and therefore, a case under Section 7 of the POCSO Act could not be made. To further this, she commented on the proportionality of the punishment—stating that it was a commonly accepted legal principle that the punishment must take into consideration the seriousness of the crime.

While the author accepts that several media outlets have used incomplete headlines which indicate that the perpetrator did not face any consequences, which has resulted in a slew of misinformation for the netizens, it is equally true that the judgement is not without its flaws. To begin with, the absence of any provision which indicates that only “skin to skin contact” would amount to sexual assault under the POCSO Act is glaring. Such a literal interpretation of the legislation reminds us of Lord Denning’s fervent criticism of the same- “it ignores the limitations of language”, wherein the letter of the law is given more importance than its spirit. Additionally, the Act itself states, “…any other act with sexual intent which involves physical contact without penetration…”- unfortunately, not enough emphasis was placed on the ‘sexual intent’ of the action, given that the conviction under Section 354 of the IPC establishes the sexual intent of the appellant beyond doubt.

Further, legislations such as POCSO have been introduced specifically with the intention to provide stricter laws with regards to sexual activities against children. Therefore, using the general IPC to deal with this matter concerning a minor fails to realize the purpose of POCSO. Additionally, using Section 354 of the IPC which concerns itself only with women, fails to address the issue of minor boys being assaulted (without any “direct physical contact”), and thus creates an additional layer of complexity in an already sensitive issue.

Furthermore, the judgement seems to overlook Section 29 of the POCSO Act, which provides an exception to the general rule by mandatorily presuming guilt and placing the burden of proof on the accused.

Lastly, using the principle of proportionality in this matter sends an extremely wrong message to the audience. Section 8 of the POCSO Act provides a minimum punishment of 3 years, while Section 354 of the IPC provides for a minimum punishment of 1 year. While observing it to be a “minor” offence, the Court managed to trivialize the actions committed by the man.

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