Sec 7 POCSO - Main Ingredient Of Offence Of 'Sexual Assault' Is 'Sexual Intent' And Not 'Skin To Skin" Contact : Supreme Court

"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" , noted the judgement the judgment delivered by a bench comprising Justice UU Lalit, S Ravindra Bhat and Bela Trivedi.

"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", the Supreme Court held.

The Bombay High Court in Satish v State of Maharashtra had held that since there was no skin-to-skin contact between the offender and the victim, it would not be 'sexual assault' under S.7 of the POCSCO Act. The Single Judge held:

On the interpretation of S.7 of the POCSO Act and the meaning of the terms 'touch' and 'physical contact', the judgement refers to the dictionary meaning of the terms and notes that both the said words have been used interchangeably in S.7 by the Legislature. It further holds that the most important ingredient for constituting the offence of sexual assault is 'sexual intent' and not the 'skin-to-skin' contact with child. On this issue, the judgement holds:

"Therefore, the act of touching the sexual part of body or any other act involving physical contact, if done with "sexual intent" would amount to "sexual assault" within the meaning of Section 7 of the POCSO Act." (Para 32)

" It is not the presence or lack of intervening material which should be focused upon, but whether the contact made through the material, comes within the definition prescribed for a particular statue, has to be seen."

In rejecting the submission that 'physical contact' would require skin-to-skin contact, the judgement notes:

The judgement relies on Balaram Kumawat v Union of India and notes that law must be interpreted with regard to the object it seeks to achieve. It holds that:

"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. " (Para 33)

On the question of what the test for 'sexual intent' would be, the judgement holds that the term cannot be confined to any predetermined format or structure and that it would be a question of fact.

The judgement also holds that the interpretation to S.7 of POCSO Act adopted by the High Court by relying on the principle of ejusdem generis is "thoroughly misconceived". It explains that there is no occasion for the application for the rule of ejusdem generis:

"the principle of "ejusdem generis" should be applied only as an aid to the construction of the statute. It should not be applied where it would defeat the very legislative intent."

"As per the settled legal position, if the specific words used in the section exhaust a class, it has to be construed that the legislative intent was to use the general word beyond the class denoted by the specific words. So far as Section 7 of the POCSO Act is concerned, the first part thereof exhausts a class of act of sexual assault using specific words, and the other part uses the general act beyond the class denoted by the specific words." (Para 41)

The judgement also notes that the High Court was erroneously swayed by the minimum punishment of five years prescribed for the offence of sexual assault and clarifies that that "neither the term of minimum punishment nor the age of the victim could be a ground to allow the accused to escape from the clutches of Section 7 of the POCSO Act." (Para 43)

The judgement holds that the High Court erred in holding that there was no offence of sexual assault as there was no skin-to-skin contact with sexual intent. It accordingly sets aside the impugned judgement and orders of the Bombay High Court, Nagpur Bench and restores the judgement passed by the Sessions Judge, Nagpur.

Coram : Justice Uday Umesh Lalit, Justice S Ravindra Bhat and Justice Bela Trivedi

Citation : LL 2021 SC 656

Click here to read/download the judgment