Touching child's private parts with sexual intent constitutes sexual assault: SC

In a majority judgment, a bench comprising justices U.U. Lalit and Bela M. Trivedi said that 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.

The Supreme Court said on Thursday that the most important ingredient for sexual assault under the POCSO Act is sexual intent, and not skin-to-skin contact with the child, as it set aside the Bombay High Court judgement which held that skin-to-skin contact was necessary for invoking charges under the Protection of Children from Sexual Offences (POCSO) Act.

In a majority judgment, a bench comprising justices U.U. Lalit and Bela M. Trivedi said that 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.

The bench said 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.

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Justice S. Ravindra Bhat gave a separate judgment where he concurred with the majority judgment dismissing the appeals.

Justice Trivedi, who authored the majority judgement, said, "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'."

The bench emphasised that 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 trivialised or held insignificant or peripheral so as to exclude such act from the purview of "sexual assault" under Section 7 of the POSCO Act.

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Senior advocate Sidharth Luthra, appearing on behalf of the accused through the Supreme Court legal services committee, contended that the phrases 'sexual intent', 'touches' and 'physical contact' have not been defined in the POCSO Act. However, the explanation to Section 11 states that any question which involves 'sexual intent' shall be a question of fact.

Luthra contended that since 'sexual assault' is defined under the POCSO Act, the definition of the words 'assault' or 'criminal force' contained in the IPC cannot be imported into the POCSO Act, though permitted under Section 2(2) of the POCSO Act.

The bench said Luthra's submission that the expression 'physical contact' used in Section 7 has to be construed as 'skin-to-skin' contact cannot be accepted.

The top court said that it cannot be oblivious to the fact that the impact of traumatic sexual assault committed on children of tender age could endure during their entire life, and may also have an adverse effect on their mental state.

"The suffering of the victims in certain cases may be immeasurable," it added.

The top court said: "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."

The bench said that 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 the provision contained in Section 7 of the POCSO Act, but would also lead to an absurd interpretation of the said provision.

On September 30, the Supreme Court had reserved its judgment on appeals challenging the Bombay High Court verdict, acquitting a person under the Act, after he pressed a girl's breast over her dress, on the ground that there was no skin-to-skin contact.

In another linked matter, the top court dismissed the appeal of a man accused under various sections of the POSCO Act.
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