Whether an offence of sexual assault is made out as per S 7 of POCSO Act if there is sexual intent or skin to skin contact?

  Section 7 pertaining to “sexual assault” reads as under:

“7. 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.{Para 21}

28. In both the cases, the main controversy centers around the interpretation of Section 7 of the POCSO Act. It is trite saying that while interpreting a statute, the courts should strive to ascertain the intention of the Legislature enacting it, and it is the duty of the Courts to accept an interpretation or construction which promotes the object of the legislation and prevents its possible abuse.

31. Now, from the bare reading of Section 7 of the Act, which pertains to the “sexual assault”, it appears that it is in two parts. The first part of the Section mentions about the act of touching the specific sexual parts of the body with sexual intent. The second part mentions about “any other act” done with sexual intent which involves physical contact without penetration.

33. There cannot be any disagreement with the submission made by Mr. Luthra for the accused that the expression “sexual intent” having not been explained in Section 7, it cannot be confined to any predetermined format or structure and that it would be a question of fact, however, the submission of Mr. Luthra that the expression ‘physical contact’ used in Section 7 has to be construed as ‘skin to skin’ contact cannot be accepted. As per the rule of construction contained in the maxim “Ut Res Magis Valeat Quam Pereat”, the construction of a rule should give effect to the rule rather than destroying it. Any narrow and pedantic interpretation of the provision which would defeat the object of the provision, cannot be accepted. It is also needless to say that where the intention of the Legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result. Restricting the interpretation of the words “touch” or “physical contact” to “skin to skin contact” would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision. “skin to skin contact” for constituting an offence of “sexual assault” could not have been intended or contemplated by the Legislature. The very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act. The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.

Supreme Court

JUSTICE UDAY UMESH LALIT JUSTICE BELA M. TRIVEDI JUSTICE S. RAVINDRA BHAT

ATTORNEY GENERAL FOR INDIA Vs. SATISH & ANR.

CRIMINAL APPEAL NO. 1410 OF 2021

18th November 2021

Author: BELA M. TRIVEDI, J.

Citation: 2021 ALL SCR (ONLINE) 664

Read full Judgment here: Click here

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