New Delhi: The Supreme Court on Thursday reserved its verdict on an appeal against the Bombay High Court's "skin-to-skin" judgment, noting that the issue in the POCSO case must be seen from the victim's perspective and not that of the perpetrators, since a child's privacy and modesty was violated.
Petitions challenging the High Court judgment on January 19 were filed by Attorney General K K Venugopal, as also the Maharashtra Government and the National Commission for Women (NCW). The High Court had acquitted a man for the offence under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act on the ground that the victim was clothed when he fondled her breast and there was no "skin-to-skin" contact.
The Supreme Court had stayed the controversial judgment on January 27, after AG Venugopal mentioned the matter, terming it as a "very disturbing conclusion.
The High Court had ruled that pressing the breast of a 12-year-old child without removing her clothes will only fall within the definition of outraging the modesty of a woman under Section 354 of Indian Penal Code (IPC).
The Bench of Justices Uday Umesh Lalit and Ravindra Bhat reserved the verdict after hearing senior advocate Sidharth Luthra who said conviction under Section 7 of the POCSO Act required touch. However, the second part of the provision that stated, “any other person, or does any other act with sexual intent...” needed to be clarified.
Luthra cited a judgment of the Bombay High Court in Bandu Vitharao Borwar, in which the court defined sexual intent.
The Bench shot back: "What does touch mean -- simply a touch? Even if you are wearing a piece of clothing, they are not trying to touch the clothes. We must see touch in the meaning that Parliament intended."
Luthra further contended that the provisions under the POCSO Act were very stringent in nature since presumptions under Sections 29, 30 and Section 42 were against the accused. Therefore, he stated, whenever there is ambiguity in law, the rule of lenity would apply and it must be decided in favour of the accused. ‘‘Look at the situation: You hold the hand of a child and Section 29 and 30 kick in,’’ he pointed out.
The Bench, however, observed that this contention would have to be examined on a case-to-case basis and the outcome will depend on the intent with which the touch took place. "If the touch/physical contact is pregnant with sexual intent, then everything falls into place."
Presiding judge Justice Lalit asked: "Tell us if the backside of a child is groped, will he be guilty or not without skin-to-skin contact? Do you say no offence will be committed."
Before the Bench closed the matter for arguments, senior advocate Geeta Luthra argued that "touch" and "physical contact" are synonyms and there cannot be differentiation in their interpretation.
On Wednesday, the Supreme Court had heard detailed arguments made by Attorney General KK Venugopal, who said that the High Court judgment would have "devastating results" as it would be followed by trial courts as precedent, unless struck down by the top court.
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