The Distinction Between Section 7 Of The POCSO Act And Section 354 Of IPC

The court held that touching a child over her clothes will not attract an offence under the POCSO Act. At the same time it held that it attracts an offence under 354 IPC and convicted the accused thereunder for a period of 1 year.

The finding of the court on this aspect is as follows : " Evidently, it is not the case of the prosecution that the appellant removed her top and pressed her breast. … The act of pressing of breast 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'. It would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code. … So, the act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty. …"

The court overlooked few fundamentals of the statutes and the jurisprudential side of a criminal act. First of all, the POCSO Act is a gender-neutral statute. But section 354 IPC is woman oriented. In other words, in the POCSO Act, both girl and boy can be victims. In 354 IPC, only woman can be a victim.

Section 7 of the POCSO Act reads as, " Whoever with sexual intent touches the vagina, PENIS, ANUS, or breast of the child…..or any other act with sexual intent which involves physical contact ……is said to commit sexual assault." The word 'PENIS' denotes sexual organ of a male child and the word 'ANUS' includes an orifice of a male child.

In a case where the accused, with sexual intent touches the penis or anus of a male child, the offender should be made liable for punishment. If the view taken by the Bombay High Court is accepted, then no punishment is possible since section 354 IPC does not include a 'male' victim.

Another folly of the judgement is that if a person inserts the vagina or anus of a female child when the child is wearing a dress, then also no conviction will be possible under the POCSO Act. If this is stretched into a hypothetical situation, if the offender is using a glove for touching the naked body of a child, then also the offence under the POCSO Act cannot come into operation because there is no skin to skin contact.

The POCSO Act is a victim oriented statute. The injury caused to the person of the victim assumes more importance. The words, "….with sexual intent touches…." denotes that an unintentional touch or contact will not and cannot attract an offence under this Act. For example, an unintentional touch while travelling in a bus or train, examination by a doctor or medical intervention as a part of physiotherapy or any other diagnosis involving contact with private parts of a child. The touch should be intentional and the intention should be to gratify the sexual desire of the accused.

The fact in issue before the Bombay High Court was that a person deliberately caught hold on the breast of a child of 12 years over the dress. The court convicted him under section 354 IPC which means that his intention was established. In other words it was not an accidental or unintentional touch.

The act alleged was nothing but an 'intentional assault with sexual intent'. Hence, the offence would come u/s 7 of the POCSO Act. The allegations should be viewed both subjectively and objectively. The fact that the accused and child were alone in a room and that the possibility of an unintentional touch is completely ruled out, the only objective consideration can be of a sexual assault. And the subject/ accused will be considered as doing the act with sexual intent unless he can establish that he did it unintentionally or without any sexual intent.

The consideration u/s 354 IPC is different altogether. The orientation in that section is the modesty of the woman and not the body of the woman. (Body of the woman is separately treated u/s 354A of IPC with a punishment up to 3 years) The intention of the accused u/s 354 IPC should be that he should either intent to outrage the modesty of the woman or he should at least know that he will thereby outrage her modesty. The sexual gratification of the accused is immaterial. The prosecution need not even allege sexual gratification. The accused may be an impotent man or a woman who is incapable of stimulating any sexual desire. To repeat, the orientation is the modesty of the woman. Even if the woman is sleeping in her bedroom in absolute privacy, the accused can do an act of outraging her modesty. Modesty is a virtue akin to the womanhood.

An offence U/s 07 of the POCSO Act involves two things. The sexual desire of the accused and the resultant injury caused to the body of the 'CHILD' (of either gender) Hence, this section cannot be equated with a sexual assault coming under section 354 of IPC.

Section 354 A (1) (i) reads, " Physical contact and advances…." It does not speak 'about sexual intent' as in the case of section 7 of the POCSO Act; which gives an indication that the body of the woman and the injury caused to it by the touch of a man is the orientation of that particular section. Whatever be the intention of the accused, going by the words of the section the offence is complete. Nevertheless, whether an unintentional touch will make a person liable to be punished under this section will be a larger question.

To conclude, theoretically the offence under Sec 07 of the POCSO Act and Sec 354 of IPC works in two distinct situations, though practically they may overlap at times. In the factual circumstances of the case discussed above, the only possible conclusion can be that the offender is liable to be punished under Sec 08 of the POCSO Act which carries a minimum punishment of three years and not under section 354 of IPC.

Views are personal.