# ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER

- **Citation:** [2021] 10 S.C.R. 955
- **Court:** Supreme Court of India
- **Decided:** 2021-11-18
- **Case number:** Criminal Appeal No. 1410 of 2021
- **Bench:** Uday Umesh Lalit, Bela M. Trivedi, S. Ravindra Bhat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/attorney-general-for-india-v-satish-and-another-34738
- **Pages:** 54

## 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
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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.

## Text

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ATTORNEY GENERAL FOR INDIA
v.
SATISH AND ANOTHER
(Criminal Appeal No. 1410 of 2021)
NOVEMBER 18, 2021
[UDAY UMESH LALIT, BELA M. TRIVEDI
AND S. RAVINDRA BHAT, JJ.]
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
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955
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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
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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 -
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER
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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.
Disposing of the appeals, the Court
HELD : Per BELA M. TRIVEDI, J, (for herself and Uday
Umesh Lalit, J):
1.1 It is trite saying that while interpreting a statute, the
courts should strive to ascertain the intention of the Legislature
enacting it, and it is the duty of the Courts to accept an
interpretation or construction which promotes the object of the
legislation and prevents its possible abuse. [Para 28][984-H;
985-A-B]
1.2 From the bare reading of Section 7 of the Protection of
Children from Sexual Offences Act, 2012 which pertains to the
"sexual assault", it appears that it is in two parts. The first part
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of the Section mentions about the act of touching the specific
sexual parts of the body with sexual intent. The second part
mentions about "any other act" done with sexual intent
which involves physical contact without penetration.
[Para 31][987-F-G]
1.3 The word "Touch" means "the sense that enables you
to be aware of things and what are like when you put your hands
and fingers on them". The word "physical" as defined, means
"of or relating to body." and the word "contact" means "the state
or condition of touching; touch; the act of touching". Thus, having
regard to the dictionary meaning of the words "touch" and
"physical contact", the Court finds much force in the submission
that both the said words have been interchangeably used in Section
7 by the legislature. The 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. 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][987-H; 988-A-C]
Oxford Advanced Learner's Dictionary; Advanced Law
Lexicon, 3rd Edn - referred to.
1.4 There cannot be any disagreement with the submission
that the expression "sexual intent" having not been explained in
Section 7, it cannot be confined to any predetermined format or
structure and that it would be a question of fact, however, the
submission that the expression 'physical contact' used in Section
7 has to be construed as 'skin to skin' contact cannot be accepted.
As per the rule of construction contained in the maxim "Ut Res
Magis Valeat Quam Pereat", the construction of a rule should
give effect to the rule rather than destroying it. Any narrow and
pedantic interpretation ofthe 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. Restricting the interpretation of the words
"touch" or "physical contact" to "skin to skin contact" would
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not only be a narrow and pedantic interpretation of the provision
contained in Section 7 of the POCSO Act, but it would lead to an
absurd interpretation of the said provision. "Skin to skin contact"
for constituting an offence of "sexual assault" could not have
been intended or contemplated by the Legislature. 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 u/s. 7. The most important
ingredient for constituting the offence of sexual assault 7 of the
Act is the "sexual intent" and not the "skin to skin" contact with
the child. [Para 33][988-D-H; 989-A]
1.5 Foreign Courts while interpreting analogous provisions
as prevalent in such countries, have held that "skin to skin
contact" is not required to constitute an offence of sexual assault.
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. Of course, the judgments of the said courts
proceed on the interpretation arising out of the terms defined in
the provisions contained in the concerned legislations and are
not pari-materia to the language of Section 7 of the POCSO
Act, nonetheless they would be relevant for the purpose of
interpreting the expression "touch" and "sexual assault".
[Para 34][989-B-D]
Regina v. H (2005) 1 WLR 2005; State of Iowa v Walter
James Fippes 442 NW 2d 611 - referred to.
1.6 The act of touching any sexual part of the body of a
child with sexual intent or any other act involving physical contact
with sexual intent, could not be trivialized or held insignificant or
peripheral so as to exclude such act from the purview of "sexual
assault" under Section 7. The law would have to be interpreted
having regard to the subject matter of the offence and to the
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object of the law it seeks to achieve. The purpose of the law
cannot be to allow the offender to sneak out of the meshes of law.
[Para 35][989-F-G]
Balaram Kumawat Vs. Union of India & Ors. (2003) 7
SCC 628 : [2003] 3 Suppl. SCR 24 - referred to.
1.7 Having regard to the seriousness of the offences under
the POCSO Act, the Legislature has incorporated certain
statutory presumptions. Section 29 permits the Special Court to
presume, when a person is prosecuted for committing or abetting
or attempting to commit any offence under Section 3, 5, 7 and
Section 9 of the Act, that such person has committed or abetted
or attempted to commit the offence, as the case may be, unless
the contrary is proved. Similarly, Section 30 thereof permits the
Special Court to presume for any offence under the Act which
requires a culpable mental state on the part of the accused, the
existence of such mental state. Of course, the accused can take
a defence and prove the fact that he had no such mental state
with respect to the act charged as an offence in that prosecution.
Though as per sub section (2) of Section 30, for the purposes of
the said section, a fact is said to be proved only when the Special
Court believes it to exist beyond reasonable doubt and not merely
when its existence is established by a preponderance of probability,
the Explanation to Section 30 clarifies that "culpable mental state"
includes intention, motive, knowledge of a fact and the belief in,
or reason to believe, a fact. Thus, on the conjoint reading of
Section 7, 11, 29 and 30, there remains no shadow of doubt that
though as per the Explanation to Section 11, "sexual intent" would
be a question of fact, the Special Court, when it believes the
existence of a fact beyond reasonable doubt, can raise a
presumption under Section 30 as regards the existence of
"culpable mental state" on the part of the accused. [Para 36][989G-H; 990-A-E]
1.8 There cannot be any disagreement with the submission
that there being an ambiguity, due to lack of definition of the
expressions - "sexual intent", "any other act", "touching" and
"physical contact", used in Section 7, coupled with the
presumptions under Sections 29 and 30 of the Act, the reverse
burden of proof on the accused would make it difficult for him to
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prove his innocence and, therefore, the POCSO Act must be
strictly interpreted. The Penal Statute enacting an offence or
imposing a penalty has to be strictly construed. A beneficial
reference be made. However, it is equally settled legal position
that the 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. The Court can not be oblivious to the fact that the impact
of traumatic sexual assault committed on children of tender age
could endure during their whole life, and may also have an adverse
effect on their mental state. The suffering of the victims in certain
cases may be immeasurable. Therefore, 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 theAct
moremeaningful and effective. [Para 37][990-E-H; 991-A-B]
Sakshi vs. Union of India 2004 (5) SCC 518 : [2004] 2
Suppl. SCR 723; R. Kalyani vs Janak C. Mehta & Ors
2009 (1) SCC 516 : [2008] 14 SCR 1249; State of
Punjab v. Gurmeet Singh (2014) 9 SCC 632 : [2014] 9
SCR 182 - referred to.
1.9 The invocation of "Rule of lenity" is also thoroughly
misconceived. The 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 in view of the settled proposition of law that
the statutory ambiguity should be invoked as a last resort of
interpretation. Where the Legislature has manifested its
intention, courts may not manufacture ambiguity in order to defeat
that intent. It is also trite that a court should not be over zealous
in searching for ambiguities or obscurities in words which are
plain. So far as the provisions contained in Section 7 of the POCSO
Actare concerned, the court does not find any ambiguity or
obscurity so as to invoke the Rule of Lenity. [Paras 38, 39][991B-E; 992-A-B]
Ladner vs. United States 358 US 169; United States vs.
Kozminski 487 U.S. 931 (1988); The People vs. REID
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II 246 Cal. App. 4Th, 822; IRC vs. Rossminster Ltd.
(1980) 1 AllER 80 - referred to.
1.10 It clearly emerges that the High Court fell into error
in case of the accused-S in holding him guilty for the minor
offences under Sections 342 and 354 of IPC and acquitting him
for the offence under Section 8 of the POCSO Act. The High
Court while specifically accepting the consistent versions of the
victim and her mother i.e. informant about the accused having
taken the victim to his house, having pressed the breast of the
victim, having attempted to remove her salwar and pressing her
mouth, had committed gross error 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, and would fall within
the definition of offence under Section 354 of the IPC. The High
Court further erred in holding that there was no offence since
there was no direct physical contact i.e. "skin to skin" with sexual
intent. [Para 40][992-B-E]
1.11 The interpretation of Section 7 at the instance of
theHigh Court on the premise of the principle of "ejusdem
generis" is also thoroughly misconceived. 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. 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. In
other words, 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
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the offence of "sexual assault" under Section 7 of the POCSO
Act. The prosecution was not required to prove a "skin to skin"
contact for the purpose of proving the charge of sexual assault
under Section 7 of the Act. [Para 41][992-E-H; 993-A-B]
1.12 The surrounding circumstances like the accused having
taken the victim to his house, the accused having lied to the
mother of the victim that the victim was not in his house, the
mother having found her daughter in the room on the first floor
of the house of the accused and the victim having narrated the
incident to her mother, were proved by the prosecution, rather
the said facts had remained unchallenged at the instance of the
accused. Such basic facts having been proved by the prosecution,
the Court was entitled to raise the statutory presumption about
the culpable mental state of the accused as permitted to be raised
under Section 30 of the said Act. The said presumption has not
been rebutted by the accused, by proving that he had no such
mental state. The allegation of sexual intent as contemplated under
Section 7 of the Act, therefore, had also stood proved by the
prosecution. The Court, therefore, is of the opinion that the
prosecution had duly proved not only the sexual intent on the
part of the accused but had also proved the alleged acts that he
had pressed the breast of the victim, attempted to remove her
salwar and had also exercised force by pressing her mouth. All
these acts were the acts of "sexual assault" as contemplated
under section 7, punishable under Section 8 of the POCSO Act.
The judgments and orders passed by the High Court are quashed
and set aside; and the judgment and orders passed by the Special
Court is restored. [Para 42][993-B-E]
1.13 As regards accused-L, the High Court while recording
the finding that the prosecution had established that the accused
had entered into the house of the prosecutrix with the intention
to outrage her modesty, also held that the acts "holding the hands
of the prosecutrix" or "opened the zip of the pant" did not fit in
the definition of sexual assault. The High Court fell into a grave
error in recording such findings. The High Court appears to have
been swayed away by the minimum punishment of five years
prescribed for the offence of "aggravated sexual assault" under
Section 10 of the POCSO Act as the age of the prosecutrix was
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five years and the sexual assault if committed on the victim who
is below 12 years is required to be treated as the "aggravated
sexual assault" as per Section 9(m) of the Act. However, 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. The alleged acts of the accused
having been held to be proved by the prosecution, would certainly
be the acts falling within the purview of the "sexual assault" as
contemplated in the second part of Section 7. Therefore, the
accused-L had committed an offence of "sexual assault" within
the meaning of Section 7 of the POCSO Act and the prosecutrix
being below the age of 12 years, he had committed an offence of
"aggravated sexual assault" as contemplated under Section 9(m)
of the said Act, liable to be punished with the imprisonment for a
term not less than five years under Section 10 of the POCSO
Act. In that view of the matter, the judgment and order of
the High Court insofar as it has set aside the conviction of the
accused-L for the offences under Section 8 and 10 of the POCSO
Act is set aside, and the judgment and order of conviction
and sentence passed by the Special Court is restored.
[Para 43][993-F-H; 994-A-F]
1.14 The accused-S is hereby convicted for the offences
punishable under Section 8 of the POCSO Act and under Sections
342, 354 and 363 of the IPC. He is directed to undergo
rigorous imprisonment for a period of three years and to pay fine
of Rs. 500/- and in default thereof to suffer simple imprisonment
for a period of one month for the offence under Section 8 of the
POCSO Act. Since he has been sentenced for the major offence
under Section 8 of the POCSO Act, no separate sentence is
imposed upon him for the other offences under the IPC.
[Para 45][995-A-B]
1.15 The accused-L is convicted for the offences punishable
under Sections 354-A (1)(i) and 448 IPC as also for the offences
under Sections 8, 12 and 10 read with Section 9(m) of the POCSO
Act. He is directed to undergo rigorous imprisonment for a period
of five years for the offence under Section 10 of the POCSO Act
and to pay fine of Rs. 25,000/- (Rupees twenty five thousand only)
and in default thereof to suffer simple imprisonment for a period
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of six months. Since he has been sentenced for the major offence
under Section 10 of the POCSO Act, no separate sentence is
being imposed upon him for the other offences under the IPC
and the POCSO Act. [Para 46][995-C-D]
1.16 It is very surprising to note that the Registry of High
Court of Bombay, Nagpur Bench, has certified the copy of the
impugned judgment by affixing the stamp on the back side of
every page of the judgment which is blank. The said copy of the
judgment appears to have been downloaded from the website
and, therefore, does not bear even the signature or the name of
the concerned judge at the end of the judgment. The certificate
that the said copy is a true copy of the judgment, is also not written
at the foot of the judgment as contemplated in Section 76 of the
Evidence Act. Such a practice, if followed by the Nagpur Bench
of the Bombay High Court, may allow the miscreants to manipulate
or commit mischief in the judicial orders which are used as the
public documents having great significance in the judicial
proceedings. The Registrar General of the Bombay High Court,
therefore, is directed to look into the matter and ensure that
proper procedure for preparing the certified copies of the
judgments/orders of the Court in accordance with law is followed.
[Para 49][996-B-E]
Bandu Vithalrao Borwar v/s State of Maharashtra
Criminal Appeal No. 50 of 2016; Noor Aga vs. State of
Punjab and Anr 2008 (16) SCC 518; The United States
vs. Wilt Berger 18 US 76 (1820); Connally v. General
Construction Co. 269 U.S. 385 (1926); J.P. Bansal vs.
State of Rajasthan & Anr. AIR (2003) SC 1405 : [2003]
2 SCR 933 - referred to.
Per S. RAVINDRA BHAT, J. (Concurring):
HELD: 1.1 The proper rule of interpretation which should
be adopted in Protection of Children from Sexual Offences Act,
2012 cases. There is a need to contextualise the provisions of
any law which requires interpretation, even while focussing on
its text. [Para 4][997-F]
Reserve Bank of India v. Peerless General Finance and
Investment Co. Ltd. & Ors. (1987) 1 SCC 424 : [1987]
2 SCR 1 - referred to.
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1.2 One time tested and well accepted mode of interpreting
a statute, especially a new statute, is to apply the "mischief rule"-
first spoken of in Heydon's case which contains a four-point
formula, acting as an aid in construing a new law or provision.
These are firstly, what was the common law before the making of
the Act; secondly what was the mischief and defect for which the
common law did not provide; thirdly what remedy Parliament
resolved and appointed to cure the disease plaguing the society;
and lastly the true reason of the remedy. The judgment in Heydon's
case also emphasised that courts always have to interpret the
law so as to suppress the mischief, and advance the remedy, and
to suppress subtle inventions and evasions for continuance of
the mischief, and pro privato commodo, and to add force and life
to the cure and remedy, according to the true intent of the makers
of the Act, pro bono publico. [Para 6][998-C-E]
Kanwar Singh v. Delhi Administration 1965 (1) SCR
7; Swantraj & Ors. v. State of Maharashtra (1975) 3
SCC 322 : [1974] 3 SCR 287; Eera v. State (NCT of
Delhi) 2017 (15) SCC 133 : [2017] 7 SCR 924 -
referred to.
Heydon's case 76 ER 637 - referred to.
1.3 To gather the mischief which Parliament wished to
eliminate, it would be necessary to briefly trace the history of the
law, which existed before POCSO was enacted. The Penal CodeIPC criminalizes assault or use of criminal force which outrages
a woman's modesty (by Section 354). The expression "criminal
force" is defined in Section 350 and "assault" is defined in Section
351. These require an element of application of physical force, to
women. The expression "modesty" was another limitation as
older decisions show that such a state was associated with
decorousness of women. This added a dimension of patriarchy
and class. One cannot be unmindful of the circumstances in which
these provisions were enacted by a colonial power, at a time,
when women's agency itself was unacknowledged, or had limited
recognition. Further, women in India were traditionally-during
the time of enactment of IPC, in the mid nineteenth century -
subordinated to the care of their fathers, or their husbands, or
other male relatives. They had no share in immovable property;
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notions of gender equality were unheard of, or not permitted.
Women had no right to vote. Quite naturally, the dignity of
women - or indeed their autonomy, was not provided for.
[Para 9][999-B-F]
Rupan Deol Bajaj v. K.P.S Gill (1995) 6 SCC 194 :
[1995] 4 Suppl. SCR 237; Kalias & Ors. v. State of
Maharashtra (2011) 1 SCC 293 - referred to.
1.4 The advent of the Constitution of India revolutionizedat least in law, all that. Regardless of gender, race, caste, religion
or region, or all of the acknowledged sectarian and discrimination
enabling barriers, everyone enjoyed equality of law, and equal
protection of law (Article 14). Further, the provision in Article 15
(1) proscribed discrimination by the state (in all its forms) on
various grounds, including gender. Article 15 (3) enabled the
state to enact special provisions for women and children.
[Para 10][999-F; 1000-A-B]
1.5 The limitations in law in dealing with acts that
undermined the dignity and autonomy of women and children,
ranging from behaviour that is now termed "stalking" to
pornography, or physical contact, and associated acts, which were
not the subject matter of any penal law, were recognized and
appropriate legislative measures adopted, in other countries.
These laws contain nuanced provisions criminalizing behaviour
that involve unwanted physical contact of different types and hues,
have the propensity to harass and discomfit women and
minors (including minors of either sex), or demean them.
[Para 11][1000-B-D]
1.6 In India, the Law Commission's 146th report (1993),
156th report (1997) and 172nd report (2000) dealt with some of
these and associated issues. The 172nd report recommended
changes to the definition of rape, expanding its scope, and also
incorporating the expanded definition of sexual assault. These,
and India's ratification of the UN Convention on the Rights of
Children, 1992, formed the background and basis for enacting
POCSO. [Para 12][1000-D-E]
1.7 Penal Code was sought to be amended through the
introduction of a Bill in 2012, which for some reason, did not see
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the light of the day; instead, the amendments were made, through
an Ordinance which was later replaced by a Parliamentary Act.
These amendments enhanced the punishment for certain offences
(including Section 354) and introduced new offences engrafted
into the IPC, such Section 354A, 354B, 354C, 354D. With this
backdrop, the provisions of POCSO have to be analysed.
[Paras 13, 14][1001-D-E; 1002-B]
1.8 The punishment for these offences is directly
proportionate to the severity of the offence. The punishment is
also inversely proportionate to the autonomy exercisable by the
child, with offences against children below the age of 12 years
falling under the 'aggravated' nature, thus subject to greater terms
of imprisonment and fine. Sexual assault is also of an 'aggravated'
nature under Sections 5 and 9 of the Act when committed by a
person in a position of authority or those exercising authority
over children in their care. These sections provide a long list of
examples. [Paras 15, 16][1002-D, G]
1.9 Section 7 of POCSO has to be viewed having regard to
the mischief rule, the background and history leading up to the
enactment of the legislation (including the amendments to IPC
in 2013) and to its objects. A plain reading of Section 7 would
show that the expression "assault" has a meaning entirely
removed from the definition of "assault" in Section 351 of IPC.
The latter involves an overt gesture, or preparation by one
person, that causes another to apprehend that the former would
use criminal force upon the intended victim. The emphasis of
Section 7 is to address the felt social need of outlawing behaviour
driven by sexual intent. [Paras 17, 18][1003-B-E]
1.10 A close analysis of Section 7 reveals that it is broadly
divided into two limbs. Sexual assault, under the first limb is
defined as the touching by a person - with sexual intent - of four
specific body parts (vagina, penis, anus or breast) of a child, or
making a child touch any of those body parts of "such person"
(i.e. a clear reference to the offender) or of "any other person"
(i.e. other than the child, or the offender). In the second limb,
sexual assault is the doing of "any other act with sexual intent
which involves physical contact without penetration". The use of
expression touch appear to be common to the first and second
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parts of the first limb. "Contact" on the other hand, which is used
in the second limb, has a wider connotation; it encompasses - but
is not always limited to-'touch'. While it is not immediately
apparent why the term 'physical contact' has been used in the
second limb, its use in conjunction with "any other act" (controlled
by the overarching expression "with sexual intent"), indicates
that 'physical contact' means something which is of wider import
than 'touching'. Viewed so, physical contact without penetration,
may not necessarily involve touch. The "other act" involving
"physical contact" may involve: direct physical contact by the
offender, with any other body part (not mentioned in the first limb)
of the victim; other acts, such as use of an object by the offender,
engaging physical contact with the victim; or in the given
circumstances of the case, even no contact by the offender (the
expression "any other act" is sufficiently wide to connote, for
instance, the victim being coerced to touch oneself). [Paras 20,
21, 23][1003-H; 1004-A-F]
https://dictionary.cambridge.org/dictionary/english/
touch;https://www.collinsdictionary.com/dictionary/english/
touch - referred to.
1.11 Parliamentary intent and emphasis, however, is that
the offending behavior (whether the touch or other act involving
physical contact), should be motivated with sexual intent.
Parliament moved beyond the four sexual body parts, and covered
acts of a general nature, which when done with sexual intent, are
criminalized by the second limb of Section 7. The specific mention
of the four body parts of the child in the first limb, and the use of
the controlling expression "sexual intent" mean that every
touch of those four body parts is prima facie suspect.
[Para 24][1004-G; 1005-A]
1.12 The circumstances in which touch or physical contact
occurs would be determinative of whether it is motivated by
'sexual intent'. There could be a good explanation for such
physical contact which include the nature of the relationship
between the child and the offender, the length of the contact, its
purposefulness; also, if there was a legitimate non-sexual purpose
for the contact. Also relevant is where it takes place and the
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conduct of the offender before and after such contact. It would be
useful to always keep in mind that "sexual intent" is not defined,
but fact-dependent-as the explanation to Section 11 specifies.
[Para 25][1005-B-C]
1.13 The inference by the High Court that "touch" cannot
necessarily involve contact with a child's sexual body parts (in
one of these cases, the breast) through clothes, is based on a
disingenuous argument. Unsurprisingly, that argument had its
roots in other jurisdictions. Such an interpretation not merely
limits the operation of the law, but tends to subvert its intention.
It has the effect of "inventions and evasions" meant to continue
the mischief, which Parliament wished to avoid. [Paras 26,
28][1005-D; 1006-D]
Regina v H 2005 (1) WLR 2005; State of Iowa v. Walter
James Phipps 442 N.W.2d.611; State of Iowa v Kris
Kanon Pearson 514 NW 2d 452 - referred to.
1.14 The fallacy in the High Court's reasoning is that it
assumes that indirect touch is not covered by Section 7- or in
other words is no "touch" at all. That provision covers and is
meant to cover both direct and indirect touch. In plain English,
to touch is to engage in one of the most basic of human sensory
perceptions. The receptors on the surface of the human body are
acutely sensitive to the subtleties of a whole range of tactile
experiences. The use of a spoon, for instance, to consume food -
without touching it with the hand - in no way diminishes the sense
of touch that is experienced by the lips and the mouth. Similarly,
when a stick, or other object is pressed onto a person, even when
clothed, their sense of touch is keen enough to feel it. Therefore,
the reasoning in the High Court's judgment quite insensitively
trivializes - indeed legitimizes - an entire range of unacceptable
behaviour which undermines a child's dignity and autonomy,
through unwanted intrusions. The High Court, therefore clearly
erred in acting on such interpretation, and basing its conviction
of and awarding sentence to the respondents; as it did they were
guilty of sexual assault. In the case of S, the conviction is to
be under Section 8. In the case of L, the appropriate conviction
is of aggravated sexual assault, under Section 10. [Para 29]
[1006-D-G]
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1.15 The term 'contact' is comprehended in the expression
'force' u/s. 349 IPC in such manner, that the causing to any
substance motion, change of motion, etc. which "brings that
substance into contact with any part of that other's body, or with
anything which that other is wearing or carrying, or with anything
so situated that such contact affects that other's sense of feeling".
The idea of 'contact' by a person with another through their
clothing would hence, imply a physical contact. This is because
of a combined operation of Section 2(2) of POCSO and Section
349 of IPC. Crucially, neither Section 7 nor any other provision
of POCSO even remotely suggests that 'direct' physical contact
unimpeded by clothing is essential for an offence to be committed.
[Para 32][1007-D-E; 1008-B]
Dulal Dhar v.