SKIN TO SKIN TOUCH CONTACT AND SPECIFIC DETAILS ABOUT THE SEXUAL ASSAULT REGARDING PHYSICAL CONTACT FOR CONVICTION UNDER SECTION 8 OF POCSO ACT

 

 

Recently Bombay High court, Nagpur bench delivered a judgement acquitted accused under section eight of prevention of children from sexual offences act [hereinafter referred as POCSO ACT] pressed breast and disrobe salwar of 12 year girl and convicted him under section 354 IPC. . In which a single bench judge held that ‘physical contact’ under section 8 of pocso act requires skin to skin touch. 

 Justice pushpa v.ganediwala acquitted accused from section 8 POCSO act and convicted him under section 354 IPC. 

 

Justice pushpa v.ganediwala held in Satish v/s State of Maharashtra CRIMINAL APPEAL NO. 161 OF 2020 skin to skin touch in the general sense means physical touch. A touch over the robe does not mean physical touch in the sense. Bombay high court further observed that in absence of any strict evidence and specific details of whether the accused removed her top or not. Whether put his hand inside her top or not. Whether removed her salwar or not. where the girl robe knicker or salwar. It attracts section 354 IPC [ outraging modesty of women by using criminal force] not section eight of pocso act. further quote that ‘basic principle of criminal jurisprudence that the punishment for an offence shall be proportionate to the seriousness of the offence.

Section 354 IPC inference maximum punishment of 5 years and a minimum of 1 year. In the other hand section 8 of pocso act inference maximum punishment of 5 years same but minimum punishment of 3 years. In this case Bombay, high court bench convicted accussed under section 354 of ipc, rigorous imprisonment for 1 year with 500 fine. In default of fine, one-month additional rigorous imprisonment.

 

 

Facts…

 

1. In 2016 accused inflict criminal force against 12-year-old prosecutrix. Pressed her breast and tried to remove her salwar. All the incident happened in next home to her home which is locked from the outside.

 

2. Star witness prosecutrix mother found her daughter in a disturbed state along with accused leaving such place. Neighbour is one of the witnesses from the prosecution side. However, there is no strict evidence whether the accused removed her top or not. Whether put his hand inside her top or not. Whether removed her salwar or not. There’s also a confusion where the girl robe knicker or salwar. Later on prosecutrix mother in appeal before the high court in a statement stated clarified about the knicker.

 

3. FIR filed at GITTIKHADEN police station. Accused charged under section 8 of pocso act, section 354 IPC [ outraging modesty of women by using criminal force] , section 363 IPC [ kidnapping from India and lawful guardian] , section 342 [ wrongful confinement] and under section 309 IPC [attempt to suicide].

 

4. Trial court [additional session special court] convicted him under section 354 IPC [ outraging modesty of women by using criminal force] sentencing him with one-year rigorous imprisonment with five hundred fine, in default of fine one moth additional rigorous imprisonment. 

 

5. Under section 363 IPC sentencing him with two-year rigorous imprisonment with five hundred fine, in default of fine one moth additional rigorous imprisonment.

 

6. Trial court acquitted him under section 309 IPC [attempt to suicide]. Directed continuance of all sentence jointly and setoff sentence with previous detention in jail. Finally, he sentenced for three-year rigorous imprisonment.

 

7. Under section 342 IPC sentencing him with six months rigorous imprisonment with five hundred fine, in default of fine one moth additional rigorous imprisonment.

 

8. Trial court acquitted him under section 309 IPC [attempt to suicide]. Directed continuance of all sentence jointly and setoff sentence with previous detention in jail. Finally, he sentenced for three-year rigorous imprisonment.

 

9. In the appeal, Bombay high court overruled the decision of the trial court. HC acquitted him under section 8 of pocso act and convicted him under section 354 IPC for one year rigorous imprisonment.

Similiarities and difference between both the section.

Section 354 in The Indian Penal Code

. Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris¬onment of either description for a term which may extend to two years, or with fine, or with both.

Section 8. Punishment for sexual assault. Whoever commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.

Sexual assault defined under..

Section 7. Sexual assault 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, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.

1. the term ‘Criminal force’ not specifically mentioned in section 7 of pocso act. But section 349 IPC defines the force according to which causing cessation or movement in any object or own resulting in harm or loss with the intent to cause harm. According to this section, we can understand the nature of force and using criminal force under legal terminology. Penetrating or even touching the vagina, penis, anus or breast child comes under the purview of the term ‘criminal force’ because it generates motion to its own or victim with the criminal intent.

 

2. Intention is also similar in both the provisions.

 

3. Five-year maximum punishment in both, fine also.

 

4. But section eight of pocso act applicable only when the sexual assault happened on any child girl or boy subjected to change in their age according to the juvenile justice act or juvenile justice board. Age of juvenility can be subject to change as per the amendment in juvenile justice act.

   5.  Specifically section 354 in The Indian Penal Code talks about the criminal force against the women. Irrespective of her age. Either a child girl or mature women. Section 10 in The Indian Penal Code defines  “Man”, “Woman”.— denotes a male human being of any age; the word “woman” denotes a female human being of any age. However no specific provision for men for outrage modesty of man [ mariyada purshottam]. Man can claim under section 321 [319] of ipc for hurt.

 

6. Pocso provision suggest minimum punishment of three years but IPC provision suggest for minimum one-year punishment.

Conflict after this judgement..

1. What if, if the prosecutrix is a child boy. In this case, an accused convicted under section 354 IPC for outraging modesty of women not in section 8 pocso act. due to not skin to skin physical contact and in absence of specific details. In IPC there is no provision for child boy or man regarding outraging the modesty of the man. In this condition where the physical contact does not prove than under which section child boy will get justice. Also, it violates the principle of natural justice.

2. Need gender equality laws or should enact a provision in favour of man or child boy.

Conclusion..

It will lead to precedent for the defence of intentional sexual assault. However Attorney general [ kk venugopal]filed a plea before the supreme court and the supreme court hold / stayed this judgement of Bombay high court also issued notice to the acquitted accused and Maharashtravernment. government.