| Headnote |
Protection of Children from Sexual Offences Act, 2012: s. 7 –”sexual assault” –Words touch and physical contact – Interpretation of – Held: Both the said words “touch” and “physical contact”have been interchangeably used in s. 7 by the legislature – Word “touch” has been used specifically with regard to the sexual parts of the body, whereas the word “physical contact” has been used for any other act – Thus, 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 s. 7 – Expression “sexual intent” having not been explained in s. 7, it cannot be confined to any predetermined format or structure and that it would be a question of fact – However, the expression ‘physical contact’ used in s. 7 cannot be construed as ‘skin to skin’ contact – 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 s. 7 but an absurd interpretation of s. 7 which 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 u/s. 7– “Skin to skin contact” for constituting an offence of “sexual assault” could not have been intended or contemplated by the Legislature – Most important ingredient for constituting the offence of sexual assault u/s. 7 is “sexual intent” and not “skin to skin” contact with the child. ss. 7, 8 – Offence of sexual assault – Allegation against accused S that he lured a 12 year old girl to his house, and pressed her breast and tried to remove her salwar and when the victim tried to shout, the accused pressed her mouth – Special court convicted and sentenced the accused for offences u/ss. 342, 354 and 363 IPC and s. 8 – In appeal, the High Court acquitted the accused for the offence u/s. 8 and convicted him for the offence u/s. 342 and 354 IPC – On appeal, held: High Court erred in holding that the act of pressing of breast of the child aged 12 years in absence of any specific details as to whether the top was removed or whether he inserted his hands inside the top and pressed her breast, would not fall in the definition of sexual assault, but within the definition of offence u/s. 354 IPC; and that there was no offence since there was no direct physical contact- “skin to skin” with sexual intent – 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, would be committing an offence of “sexual assault” – Similarly, whoever does any other act with sexual intent which involves physical contact without penetration, would also be committing the offence of “sexual assault” u/s. 7 – Prosecution was not required to prove a “skin to skin” contact for proving the charge of sexual assault u/s. 7 – Allegation of sexual intent stood proved by the prosecution – All these acts were the acts of “sexual assault” as contemplated u/s. 7, punishable u/s. 8 –Thus, the order passed by the High Court set aside and that of the trial court restored. ss. 8 and 10 r/w s. 9(m) and 12 – Allegation against accused L that he went to the house of the victim aged 5 years when no one was there, and caught the hand of the victim, moved her frock upward with one hand and lowered her pant with the other hand, and thereafter, unzipped his pant and showed his penis to her and asked her to lay down on the cot – When the mother of the victim returned, she saw one person had caught the hand of the victim and also saw the victim raising her pant – Special Court convicted and sentenced the accused for offences punishable u/s. 448 and 354-A(1)(i) IPC and ss. 8 and 10 r/w s. 9(m) and 12 – High Court upheld the conviction u/ss. 448 and 354-A(1)(i) IPC rw s.12 of the POCSO, however, set aside the conviction u/ss. 8 and 10 and modified the sentence to the extent already undergone – On appeal, held: When the alleged acts of entering the house of the prosecutrix with sexual intent to outrage her modesty, of holding her hands and opening the zip of his pant showing his penis, are held to be established by the prosecution, there was no reason for the High Court not to treat such acts as the acts of “sexual assault” within the meaning of s. 7 – Accused-L committed an offence of “sexual assault” within the meaning of s. 7 and the prosecutrix being below the age of 12 years, he had committed an offence of “aggravated sexual assault” as contemplated u/s. 9(m), liable to be punished with the imprisonment for a term not less than five years u/s. 10 – Thus, the order passed by the High Court set aside and that of the trial court are restored. Enactment of the Act – Object and reasons – Stated. Interpretation of statutes: Duty of the Court – Held: Courts should ascertain the intention of the Legislature enacting it, and should accept an interpretation or construction which promotes the object of the legislation and prevents its possible abuse. Rule of construction contained in maxim “Ut Res Magis Valeat Quam Pereat” – Held: 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 – 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 - Maxim “Ut Res Magis Valeat Quam Pereat”. Penal statue – Construction of – Held: Penal Statute enacting an offence or imposing a penalty has to be strictly construed – Thus, POCSO must be strictly constructed – However, clauses of a statute should be construed with reference to the context vis-a-vis the other provisions so as to make a consistent enactment of the whole Statute relating to the subject matter – Thus, considering the objects of the POCSO Act, its provisions, more particularly pertaining to the sexual assault, sexual harassment etc. have to be construed vis-a-vis the other provisions, so as to make the objects of the Act more meaningful and effective – Protection of Children from Sexual Offences Act, 2012. Rule of lenity – Invocation of – Held: Where the legislature has manifested its intention, courts may not manufacture ambiguity in order to defeat that intent – Court should not be over zealous in searching for ambiguities or obscurities in words which are plain – As regards s.7 of the POCSO Act, the court did not find any ambiguity or obscurity so as to invoke the Rule of Lenity – Invocation of “Rule of lenity” was misconceived – Submission that the “Rule of Lenity” requires a court to resolve statutory ambiguity in a criminal statute in favour of the accused, or to strictly construe the statute against the State, cannot be accepted since the statutory ambiguity should be invoked as a last resort of interpretation – Protection of Children from Sexual Offences Act, 2012. Principle of “ejusdem generis” – Application of – Held: 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 – 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. Crime against women: Offence of sexual assault – “Skin to skin contact” if, required to constitute an offence of sexual assault – Interpretation of expression “touch” and “sexual assault” – Analogous provisions as prevalent in foreign countries – Discussed. Words and phrases: Touch and physical contact, in the context of s. 7 of the POCSO Act – Meaning of – Protection of Children from Sexual Offences Act, 2012 – s. 7. Practice and procedure:Certified copies of the judgments/ orders – Proper procedure for preparing the certified copies – Need for. |
