Updated: Feb 9
Judging the size of Iceberg by only seeing its tip is the most dangerous assumption a man could make which can probably be his last supposition. The recent controversy revolving around the ruling by Justice Pushpa Ganediwala (single bench) of the Nagpur bench of Bombay High Court has left many of us with a lesson that little knowledge is dangerous. The observation by Justice Ganediwala that "groping a child's breasts without 'skin-to-skin contact' would amount to molestation under the Indian Penal Code but not the graver offence of 'sexual assault' under the Protection of Children from Sexual Offenses (POCSO) Act" was a misinterpretation of the law.
The observation by learned Justice was made in a Criminal appeal case in which the decision of a sessions court which had convicted 39-year-old accused under Section 8 of the POCSO Act and sentenced him to three years in jail was reversed. The Bombay High Court Nagpur bench has acquitted the accused man of sexual assault charges under the Prevention of Children from Sexual Offences (POCSO) Act and has convicted him under the Indian Penal Code (IPC) for a lesser offence. The accused was convicted under Section 354 (outraging a woman’s modesty) and 342 (wrongful confinement) of the Indian Penal Code, 1860 to undergo RI (rigorous imprisonment) for one year and to pay fine of ₹500/-, in default of fine to suffer RI for one month. The sentence for the offence punishable under Section 342 of the IPC i.e., six months and fine of ₹500/-, in default to suffer RI for one month, is maintained.
The seriousness of the act of the accused was not noticed by the Court which is evident for the following observation of Court. The Court with the intent of placing reliance on the principle of proportionality “the punishment for an offence should be proportionate to the seriousness of Crime”. The court further went on to dilute the gravity of the offence when it observed that “any other act” as mentioned in Section 7 of the Act must essentially be of the nature of the Act mentioned in the section.
“The act of pressing of breasts of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’,” the court observed as mentioned in para no. 26 of the impugned order. The narrow interpretation of the Statute by learned Judge has raised many questions against our Judiciary. Acquitting the accused on a bare restricted literal interpretation of the language Sexual assault as mentioned of the Act has vanquished justice for the Victim.
In the given case, even though it was found that the accused has grabbed the pressed of the child yet the court didn’t punish him under the POCSO Act (hereinafter referred to as “The Act”) instead observed that “Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e., skin to skin with sexual intent without penetration,”. Neither Section 8 of the Act nor the Section 7 of the Act talks about “direct physical contact” as an essential element for an act to be considered as Sexual Assault.
The Court was wrong in creating a distinction among the act of sexual assault against a person with clothes and without clothes. Human beings have passed the early human stage long back. Clothes are a basic part of human integrity. Even if for a second let’s say the court was not wrong in classifying the offence based on with or without clothes. Do you think it is justified that, a 30-year-old man who tried to forcefully press the breast of a minor girl while wearing a glove be set free? Just because he didn’t touch the private parts of the girl and there was no “skin-to-skin” contact. The answer is No.
Other than that, the Section 29 of the Act which takes about the presumption of the accused being guilty who has been prosecuted under section 7 of the Act was not considered by the Court in the present case.
Section 354 of the Indian Penal Code, 1860 is attracted in cases where the criminal force used by the accused with intent to outrage the modesty of a woman. It can range from mere catching hold of a woman's hand to any heinous nature of sexual assault which may fall short of penile penetration or an attempt to do so or unnatural offences. (Para 28, Santhosh Madhavan Amrutha Chaithanya v. C.I. of Police & Anr, MANU/KE/0162/2008) Thought the ambit of offences under this section is wide but the punishment which is prescribed for the same is very less as compared to the punishment which is meted out to the convict under Section 8 of the POCSO Act (it describes the punishment for sexual assault against a child, the term of which shall not be less than three years and shall also be liable to fine). Even if for a second let’s say the learned judge held right in judgement, immediately a question arises why the minimum punishment as mentioned under Section 354 of the IPC was sentenced to the accused?
Furthermore, the Single Judge recorded the name of the victim child in paragraph no. 12, which is detrimental and against the spirit of section 228A of IPC which bars the publication of names of the victim of certain offences.
The Act was enacted with the sole purpose of protecting children from offences of sexual assault, sexual harassment and pornography, this judgement of the HC defeated this purpose. The narrow outlook of the High Court has set a wrong precedent. This would also dilute the mandate of other legislations enacted for the protection and safety of women and girls. The judgment has invited criticism from experts and activists, who say that this may set a bad precedent for minors who face verbal molestation and harassment. The National Commission for Women said it planned to mount a legal challenge to the judgment, which it said will have a "cascading effect on various provisions involving safety and security of women." Sexual assault is a huge issue in India, where sexual crimes are often brutal and widespread but are often poorly dealt with under the country's justice system. The laws designed to prevent sexual crimes should be strictly applied and the judges should interpret them keeping in mind a wider purview of Society.