The ‘skin-to-skin contact’ controversial judgement of Bombay High Court @LexCliq by Anisha Roy 

CRIMINAL APPEAL NO. 161 OF 2020 (Satish v. State of Maharashtra)
The ‘skin-to-skin contact’ controversial judgement of Bombay High Court  

 

The Bombay High Court clearly made an absurd interpretation of Section 7 of the POSCO Act dealing with sexual assault. It said that “the act of pressing breast of a child aged 12 years without ‘skin-to-skin contact’ i.e., groping the child without removing the clothes, cannot be termed as sexual assault under POCSO Act. The judgment failed to upheld the protection of child rights and thus totally ignored the legislative intent behind POCSO Act as well as Juvenile Justice Act. Further, the Court has clearly shown an insensitive judicial approach as the obiter dictum was strictly devoid of application of judicial mind. Moreover, the verdict delivered was termed as obnoxious and outrageous. It was likely to set a dangerous precedent and has all constituents to eliminate the belief of general public over judiciary.

 

The question before court to consider was that whether the ‘pressing of breast’ and ‘attempt to remove the salwar’ would fall under the definition of ‘sexual assault’ as defined u/s 7 and punishable u/s 8 of POCSO Act. The facts of the case was such that the prosecutrix, a minor girl was going to bring guava and then accused hold her hand and told to give it. He brought her in his house and then tried to remove salwar and pressed her breast. Then she shouted which was heard by a neighbour of prosecutrix’s mother who informed her (mother) and showed her accused’s house. At this point, appellant mother reached and asked accused about whereabouts of her daughter to which he denied. She searched the house and found her daughter crying in a room whose door was bolted from outside. The prosecutrix narrated the whole story to her mother after which she went to lodge an FIR.

 

Seeing the nature of the offence and circumstances, the court fitted the alleged act into the offence of outraging the modesty of a woman u/s 354 of IPC prescribing the punishment of a minimum sentence of one year.  The court found that the accused could be punished for sexual assault under POCSO Act if direct physical contact with sexual intent without penetration were found to exist. It said “act of pressing could be criminal force to a woman/ girl with the intent of outraging her modesty”. It held that ‘physical contact must be skin to skin or direct physical contact’.

 

The absence of specific details as to whether top was removed or whether he inserted hand inside top and then pressed her breast, the lack of strict proof and serious allegations and to be more specific the false pretext of proportionate punishment were those considerations which impaired the whole verdict and ultimately shaken the judicial limbs. This criminal appeal though was disposed of but failed to provide justice to prosecutrix. The Special Court wrongly deferred from the principle of ejusdem generis on ‘any other act’ to constitute sexual assault. There is no justification to evade the legislative intent behind making POCSO Act specially to deal with offences related to minor child. The court treated the case with superficial look without addressing the need to interpret the act as a whole as well as the need to substantially punish the convicts of child abusers. The sort of psychological and sociological impact that such offences will have on a child’s innocent mind should have been seen with holistically. Also the name of prosecutrix which was supposed to be hidden was revealed in judgement. No child is born to face such mental wounds. No wonder if due to lesser punishment and harassment during questioning, excessive delays, financial and social pressure, lack of family support and to substantiate the misery, such insensitive decisions are given, then there would hardly be left any belief in judiciary.  Further, it is appreciable on the part of Supreme Court to instantaneously dismiss the verdict of Bombay High Court.

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