ATTORNEY GENERAL FOR INDIA versus SATISH AND ANOTHER on 18 November 2021

[2021] 10 S.C.R. 955

ATTORNEY GENERAL FOR INDIA

v.

SATISH AND ANOTHER

(Criminal Appeal No. 1410 of 2021)

NOVEMBER 18, 2021[UDAY UMESH LALIT, BELA M. TRIVEDIAND 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 “physicalcontact”have been interchangeably used in s. 7 by the legislature –Word “touch” has been used specifically with regard to the sexualparts of the body, whereas the word “physical contact” has beenused for any other act – Thus, the act of touching the sexual part ofbody or any other act involving physical contact, if done with“sexual intent” would amount to “sexual assault” within the meaningof s. 7 – Expression “sexual intent” having not been explained in s.7, it cannot be confined to any predetermined format or structureand 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 anarrow and pedantic interpretation of s. 7 but an absurdinterpretation of s. 7 which would lead to a very detrimentalsituation, frustrating the very object of the Act inasmuch as in thatcase touching the sexual or non sexual parts of the body of a childwith gloves, condoms, sheets or with cloth, though done with sexualintent 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 sexualassault u/s. 7 is “sexual intent” and not “skin to skin” contact withthe child.

ss. 7, 8 – Offence of sexual assault – Allegation againstaccused S that he lured a 12 year old girl to his house, and pressedher breast and tried to remove her salwar and when the victim tried

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Ato shout, the accused pressed her mouth – Special court convictedand sentenced the accused for offences u/ss. 342, 354 and 363IPC and s. 8 – In appeal, the High Court acquitted the accused forthe offence u/s. 8 and convicted him for the offence u/s. 342 and354 IPC – On appeal, held: High Court erred in holding that theact of pressing of breast of the child aged 12 years in absence ofBany specific details as to whether the top was removed or whetherhe inserted his hands inside the top and pressed her breast, wouldnot fall in the definition of sexual assault, but within the definitionof offence u/s. 354 IPC; and that there was no offence since therewas no direct physical contact- “skin to skin” with sexual intent –CWhoever, with sexual intent touches the vagina, penis, anus or breastof the child or makes the child touch the vagina, penis, anus orbreast of such person or any other person, would be committing anoffence of “sexual assault” – Similarly, whoever does any otheract with sexual intent which involves physical contact without penetration, would also be committing the offence of “sexualDassault” u/s. 7 – Prosecution was not required to prove a “skin toskin” contact for proving the charge of sexual assault u/s. 7 –Allegation of sexual intent stood proved by the prosecution – Allthese acts were the acts of “sexual assault” as contemplated u/s. 7,punishable u/s. 8 –Thus, the order passed by the High Court setEaside and that of the trial court restored.

ss. 8 and 10 r/w s. 9(m) and 12 – Allegation against accusedL that he went to the house of the victim aged 5 years when no onewas there, and caught the hand of the victim, moved her frock upwardwith one hand and lowered her pant with the other hand, andFthereafter, unzipped his pant and showed his penis to her and askedher 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 sawthe victim raising her pant – Special Court convicted and sentencedthe accused for offences punishable u/s. 448 and 354-A(1)(i) IPCand ss. 8 and 10 r/w s. 9(m) and 12 – High Court upheld theGconviction 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 thesentence to the extent already undergone – On appeal, held: Whenthe alleged acts of entering the house of the prosecutrix with sexualintent to outrage her modesty, of holding her hands and openingHthe 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 treatsuch acts as the acts of “sexual assault” within the meaning of s. 7– Accused-L committed an offence of “sexual assault” within themeaning of s. 7 and the prosecutrix being below the age of 12 years,he had committed an offence of “aggravated sexual assault” ascontemplated u/s. 9(m), liable to be punished with the imprisonmentfor a term not less than five years u/s. 10 – Thus, the order passedby 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 theintention of the Legislature enacting it, and should accept aninterpretation or construction which promotes the object of thelegislation and prevents its possible abuse.

Rule of construction contained in maxim “Ut Res Magis ValeatQuam Pereat” – Held: Construction of a rule should give effect tothe rule rather than destroying it – Any narrow and pedanticinterpretation of the provision which would defeat the object of theprovision, cannot be accepted – Where the intention of theLegislature cannot be given effect to, the courts would accept thebolder construction for the purpose of bringing about an effectiveresult - Maxim “Ut Res Magis Valeat Quam Pereat”.

Penal statue – Construction of – Held: Penal Statute enactingan offence or imposing a penalty has to be strictly construed –Thus, POCSO must be strictly constructed – However, clauses of astatute should be construed with reference to the context vis-a-visthe other provisions so as to make a consistent enactment of thewhole Statute relating to the subject matter – Thus, considering theobjects of the POCSO Act, its provisions, more particularlypertaining to the sexual assault, sexual harassment etc. have to beconstrued vis-a-vis the other provisions, so as to make the objectsof the Act more meaningful and effective – Protection of Childrenfrom Sexual Offences Act, 2012.

Rule of lenity – Invocation of – Held: Where the legislaturehas manifested its intention, courts may not manufacture ambiguityin order to defeat that intent – Court should not be over zealous insearching for ambiguities or obscurities in words which are plain –

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AAs regards s.7 of the POCSO Act, the court did not find anyambiguity or obscurity so as to invoke the Rule of Lenity –Invocation of “Rule of lenity” was misconceived – Submission thatthe “Rule of Lenity” requires a court to resolve statutory ambiguityin a criminal statute in favour of the accused, or to strictly construethe statute against the State, cannot be accepted since the statutoryBambiguity 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 tothe construction of the statute – It should not be applied where itCwould defeat the very legislative intent – If the specific words usedin the section exhaust a class, it has to be construed that thelegislative intent was to use the general word beyond the classdenoted by the specific words.

Crime against women: Offence of sexual assault – “Skin toDskin 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 contextof s. 7 of the POCSO Act – Meaning of – Protection of ChildrenEfrom Sexual Offences Act, 2012 – s. 7.

Practice and procedure:Certified copies of the judgments/orders – Proper procedure for preparing the certified copies – Needfor.

Disposing of the appeals, the Court

FHELD : Per BELA M. TRIVEDI, J, (for herself and UdayUmesh Lalit, J):

1.1 It is trite saying that while interpreting a statute, thecourts should strive to ascertain the intention of the Legislatureenacting it, and it is the duty of the Courts to accept anGinterpretation or construction which promotes the object of thelegislation and prevents its possible abuse. [Para 28][984-H;985-A-B]

1.2 From the bare reading of Section 7 of the Protection ofChildren from Sexual Offences Act, 2012 which pertains to the“sexual assault”, it appears that it is in two parts. The first partH

of the Section mentions about the act of touching the specificsexual parts of the body with sexual intent. The second partmentions about “any other act” done with sexual intentwhich involves physical contact without penetration.[Para 31][987-F-G]

1.3 The word “Touch” means “the sense that enables youto be aware of things and what are like when you put your handsand fingers on them”. The word “physical” as defined, means“of or relating to body.” and the word “contact” means “the stateor condition of touching; touch; the act of touching”. Thus, havingregard to the dictionary meaning of the words “touch” and“physical contact”, the Court finds much force in the submissionthat both the said words have been interchangeably used in Section7 by the legislature. The word “Touch” has been used specificallywith 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 involvingphysical contact, if done with “sexual intent” would amount to“sexual assault” within the meaning of Section 7 of the POCSOAct. [Para 32][987-H; 988-A-C]

Oxford Advanced Learner’s Dictionary; Advanced LawLexicon, 3rd Edn – referred to.

1.4 There cannot be any disagreement with the submissionthat the expression “sexual intent” having not been explained inSection 7, it cannot be confined to any predetermined format orstructure and that it would be a question of fact, however, thesubmission that the expression ‘physical contact’ used in Section7 has to be construed as ‘skin to skin’ contact cannot be accepted.As per the rule of construction contained in the maxim “Ut ResMagis Valeat Quam Pereat”, the construction of a rule shouldgive effect to the rule rather than destroying it. Any narrow andpedantic interpretation ofthe provision which would defeat theobject of the provision, cannot be accepted. Where the intentionof the Legislature cannot be given effect to, the courts wouldaccept the bolder construction for the purpose of bringing aboutan effective result. Restricting the interpretation of the words“touch” or “physical contact” to “skin to skin contact” would A

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Anot only be a narrow and pedantic interpretation of the provisioncontained in Section 7 of the POCSO Act, but it would lead to anabsurd interpretation of the said provision. “Skin to skin contact”for constituting an offence of “sexual assault” could not havebeen intended or contemplated by the Legislature. The veryobject of enacting the POCSO Act is to protect the children fromBsexual abuse, and if such a narrow interpretation is accepted, itwould lead to a very detrimental situation, frustrating the veryobject of the Act, inasmuch as in that case touching the sexual ornon sexual parts of the body of a child with gloves, condoms,sheets or with cloth, though done with sexual intent would notCamount to an offence of sexual assault u/s. 7. The most importantingredient for constituting the offence of sexual assault 7 of theAct is the “sexual intent” and not the “skin to skin” contact withthe child. [Para 33][988-D-H; 989-A]

1.5 Foreign Courts while interpreting analogous provisionsDas prevalent in such countries, have held that “skin to skincontact” is not required to constitute an offence of sexual assault.It is not the presence or lack of intervening material which shouldbe focused upon, but whether the contact made through thematerial, comes within the definition prescribed for a particularstatue, has to be seen. Of course, the judgments of the said courtsEproceed on the interpretation arising out of the terms defined inthe provisions contained in the concerned legislations and arenot pari-materia to the language of Section 7 of the POCSOAct, nonetheless they would be relevant for the purpose ofinterpreting the expression “touch” and “sexual assault”.F[Para 34][989-B-D]

Regina v. H (2005) 1 WLR 2005; State of Iowa v WalterJames Fippes 442 NW 2d 611 – referred to.

1.6 The act of touching any sexual part of the body of achild with sexual intent or any other act involving physical contactGwith sexual intent, could not be trivialized or held insignificant orperipheral so as to exclude such act from the purview of “sexualassault” under Section 7. The law would have to be interpretedhaving regard to the subject matter of the offence and to the H

object of the law it seeks to achieve. The purpose of the lawcannot 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) 7SCC 628 : [2003] 3 Suppl. SCR 24 – referred to.

1.7 Having regard to the seriousness of the offences underthe POCSO Act, the Legislature has incorporated certainstatutory presumptions. Section 29 permits the Special Court topresume, when a person is prosecuted for committing or abettingor attempting to commit any offence under Section 3, 5, 7 andSection 9 of the Act, that such person has committed or abettedor attempted to commit the offence, as the case may be, unlessthe contrary is proved. Similarly, Section 30 thereof permits theSpecial Court to presume for any offence under the Act whichrequires a culpable mental state on the part of the accused, theexistence of such mental state. Of course, the accused can takea defence and prove the fact that he had no such mental statewith respect to the act charged as an offence in that prosecution.Though as per sub section (2) of Section 30, for the purposes ofthe said section, a fact is said to be proved only when the SpecialCourt believes it to exist beyond reasonable doubt and not merelywhen 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 ofSection 7, 11, 29 and 30, there remains no shadow of doubt thatthough as per the Explanation to Section 11, “sexual intent” wouldbe a question of fact, the Special Court, when it believes theexistence of a fact beyond reasonable doubt, can raise apresumption under Section 30 as regards the existence of“culpable mental state” on the part of the accused. [Para 36][989-G-H; 990-A-E]

1.8 There cannot be any disagreement with the submissionthat there being an ambiguity, due to lack of definition of theexpressions - “sexual intent”, “any other act”, “touching” and“physical contact”, used in Section 7, coupled with thepresumptions under Sections 29 and 30 of the Act, the reverseburden of proof on the accused would make it difficult for him to ABC

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Aprove his innocence and, therefore, the POCSO Act must bestrictly interpreted. The Penal Statute enacting an offence orimposing a penalty has to be strictly construed. A beneficialreference be made. However, it is equally settled legal positionthat the clauses of a statute should be construed with referenceto the context vis-a-vis the other provisions so as to make aBconsistent enactment of the whole Statute relating to the subjectmatter. The Court can not be oblivious to the fact that the impactof traumatic sexual assault committed on children of tender agecould endure during their whole life, and may also have an adverseeffect on their mental state. The suffering of the victims in certainCcases may be immeasurable. Therefore, considering the objectsof the POCSO Act, its provisions, more particularly pertaining tothe sexual assault, sexual harassment etc. have to be construedvis-a-vis the other provisions, so as to make the objects of theActmoremeaningful and effective. [Para 37][990-E-H; 991-A-B]

DSakshi vs. Union of India 2004 (5) SCC 518 : [2004] 2Suppl. SCR 723; R. Kalyani vs Janak C. Mehta & Ors2009 (1) SCC 516 : [2008] 14 SCR 1249; State ofPunjab v. Gurmeet Singh (2014) 9 SCC 632 : [2014] 9SCR 182 – referred to.

E1.9 The invocation of “Rule of lenity” is also thoroughlymisconceived. The submission that the “Rule of Lenity” requiresa court to resolve statutory ambiguity in a criminal statute in favourof the accused, or to strictly construe the statute against the State,cannot be accepted in view of the settled proposition of law thatthe statutory ambiguity should be invoked as a last resort ofFinterpretation. Where the Legislature has manifested itsintention, courts may not manufacture ambiguity in order to defeatthat intent. It is also trite that a court should not be over zealousin searching for ambiguities or obscurities in words which areplain. So far as the provisions contained in Section 7 of the POCSOGActare concerned, the court does not find any ambiguity orobscurity so as to invoke the Rule of Lenity. [Paras 38, 39][991-B-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 errorin case of the accused-S in holding him guilty for the minoroffences under Sections 342 and 354 of IPC and acquitting himfor the offence under Section 8 of the POCSO Act. The HighCourt while specifically accepting the consistent versions of thevictim and her mother i.e. informant about the accused havingtaken the victim to his house, having pressed the breast of thevictim, having attempted to remove her salwar and pressing hermouth, had committed gross error in holding that the act ofpressing of breast of the child aged 12 years in absence of anyspecific details as to whether the top was removed or whether heinserted his hands inside the top and pressed her breast, wouldnot fall in the definition of sexual assault, and would fall withinthe definition of offence under Section 354 of the IPC. The HighCourt further erred in holding that there was no offence sincethere was no direct physical contact i.e. “skin to skin” with sexualintent. [Para 40][992-B-E]

1.11 The interpretation of Section 7 at the instance oftheHigh Court on the premise of the principle of “ejusdemgeneris” is also thoroughly misconceived. The principle of“ejusdem generis” should be applied only as an aid to theconstruction of the statute. It should not be applied where it woulddefeat the very legislative intent. If the specific words used inthe section exhaust a class, it has to be construed that thelegislative intent was to use the general word beyond the classdenoted by the specific words. So far as Section 7 of the POCSOAct is concerned, the first part thereof exhausts a class of act ofsexual assault using specific words, and the other part uses thegeneral act beyond the class denoted by the specific words. Inother words, whoever, with sexual intent touches the vagina,penis, anus or breast of the child or makes the child touch thevagina, 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 involvesphysical contact without penetration, would also be committing A

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Athe offence of “sexual assault” under Section 7 of the POCSOAct. The prosecution was not required to prove a “skin to skin”contact for the purpose of proving the charge of sexual assaultunder Section 7 of the Act. [Para 41][992-E-H; 993-A-B]

1.12 The surrounding circumstances like the accused havingBtaken the victim to his house, the accused having lied to themother of the victim that the victim was not in his house, themother having found her daughter in the room on the first floorof the house of the accused and the victim having narrated theincident to her mother, were proved by the prosecution, ratherthe said facts had remained unchallenged at the instance of theCaccused. Such basic facts having been proved by the prosecution,the Court was entitled to raise the statutory presumption aboutthe culpable mental state of the accused as permitted to be raisedunder Section 30 of the said Act. The said presumption has notbeen rebutted by the accused, by proving that he had no such Dmental state. The allegation of sexual intent as contemplated underSection 7 of the Act, therefore, had also stood proved by theprosecution. The Court, therefore, is of the opinion that theprosecution had duly proved not only the sexual intent on thepart of the accused but had also proved the alleged acts that hehad pressed the breast of the victim, attempted to remove herEsalwar and had also exercised force by pressing her mouth. Allthese acts were the acts of “sexual assault” as contemplatedunder section 7, punishable under Section 8 of the POCSO Act.The judgments and orders passed by the High Court are quashedand set aside; and the judgment and orders passed by the SpecialFCourt is restored. [Para 42][993-B-E]

1.13 As regards accused-L, the High Court while recordingthe finding that the prosecution had established that the accusedhad entered into the house of the prosecutrix with the intentionto outrage her modesty, also held that the acts “holding the handsGof the prosecutrix” or “opened the zip of the pant” did not fit inthe definition of sexual assault. The High Court fell into a graveerror in recording such findings. The High Court appears to havebeen swayed away by the minimum punishment of five yearsprescribed for the offence of “aggravated sexual assault” underSection 10 of the POCSO Act as the age of the prosecutrix wasH

five years and the sexual assault if committed on the victim whois below 12 years is required to be treated as the “aggravatedsexual assault” as per Section 9(m) of the Act. However, neitherthe term of minimum punishment nor the age of the victim couldbe a ground to allow the accused to escape from the clutches ofSection 7 of the POCSO Act. The alleged acts of the accusedhaving been held to be proved by the prosecution, would certainlybe the acts falling within the purview of the “sexual assault” ascontemplated in the second part of Section 7. Therefore, theaccused-L had committed an offence of “sexual assault” withinthe meaning of Section 7 of the POCSO Act and the prosecutrixbeing 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 aterm not less than five years under Section 10 of the POCSOAct. In that view of the matter, the judgment and order ofthe High Court insofar as it has set aside the conviction of theaccused-L for the offences under Section 8 and 10 of the POCSOAct is set aside, and the judgment and order of convictionand 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 offencespunishable under Section 8 of the POCSO Act and under Sections342, 354 and 363 of the IPC. He is directed to undergorigorous imprisonment for a period of three years and to pay fineof Rs. 500/- and in default thereof to suffer simple imprisonmentfor a period of one month for the offence under Section 8 of thePOCSO Act. Since he has been sentenced for the major offenceunder Section 8 of the POCSO Act, no separate sentence isimposed upon him for the other offences under the IPC.[Para 45][995-A-B]

1.15 The accused-L is convicted for the offences punishableunder Sections 354-A (1)(i) and 448 IPC as also for the offencesunder Sections 8, 12 and 10 read with Section 9(m) of the POCSOAct. He is directed to undergo rigorous imprisonment for a periodof five years for the offence under Section 10 of the POCSO Actand to pay fine of Rs. 25,000/- (Rupees twenty five thousand only)and in default thereof to suffer simple imprisonment for a period ABC

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Aof six months. Since he has been sentenced for the major offenceunder Section 10 of the POCSO Act, no separate sentence isbeing imposed upon him for the other offences under the IPCand the POCSO Act. [Para 46][995-C-D]

1.16 It is very surprising to note that the Registry of HighBCourt of Bombay, Nagpur Bench, has certified the copy of theimpugned judgment by affixing the stamp on the back side ofevery page of the judgment which is blank. The said copy of thejudgment appears to have been downloaded from the websiteand, therefore, does not bear even the signature or the name ofthe concerned judge at the end of the judgment. The certificateCthat the said copy is a true copy of the judgment, is also not writtenat the foot of the judgment as contemplated in Section 76 of theEvidence Act. Such a practice, if followed by the Nagpur Benchof the Bombay High Court, may allow the miscreants to manipulateor commit mischief in the judicial orders which are used as theDpublic documents having great significance in the judicialproceedings. The Registrar General of the Bombay High Court,therefore, is directed to look into the matter and ensure thatproper procedure for preparing the certified copies of thejudgments/orders of the Court in accordance with law is followed.[Para 49][996-B-E]EBandu Vithalrao Borwar v/s State of MaharashtraCriminal Appeal No. 50 of 2016; Noor Aga vs. State ofPunjab and Anr 2008 (16) SCC 518; The United Statesvs. Wilt Berger 18 US 76 (1820); Connally v. GeneralConstruction Co. 269 U.S. 385 (1926); J.P. Bansal vs.FState 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 shouldbe adopted in Protection of Children from Sexual Offences Act,G2012 cases. There is a need to contextualise the provisions ofany law which requires interpretation, even while focussing onits text. [Para 4][997-F]

Reserve Bank of India v. Peerless General Finance andInvestment Co. Ltd. & Ors. (1987) 1 SCC 424 : [1987]H2 SCR 1 – referred to.

1.2 One time tested and well accepted mode of interpretinga statute, especially a new statute, is to apply the “mischief rule”-first spoken of in Heydon’s case which contains a four-pointformula, acting as an aid in construing a new law or provision.These are firstly, what was the common law before the making ofthe Act; secondly what was the mischief and defect for which thecommon law did not provide; thirdly what remedy Parliamentresolved and appointed to cure the disease plaguing the society;and lastly the true reason of the remedy. The judgment in Heydon’scase also emphasised that courts always have to interpret thelaw so as to suppress the mischief, and advance the remedy, andto suppress subtle inventions and evasions for continuance ofthe mischief, and pro privato commodo, and to add force and lifeto the cure and remedy, according to the true intent of the makersof the Act, pro bono publico. [Para 6][998-C-E]

Kanwar Singh v. Delhi Administration 1965 (1) SCR7; Swantraj & Ors. v. State of Maharashtra (1975) 3SCC 322 : [1974] 3 SCR 287; Eera v. State (NCT ofDelhi) 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 toeliminate, it would be necessary to briefly trace the history of thelaw, which existed before POCSO was enacted. The Penal Code-IPC criminalizes assault or use of criminal force which outragesa woman’s modesty (by Section 354). The expression “criminalforce” is defined in Section 350 and “assault” is defined in Section351. These require an element of application of physical force, towomen. The expression “modesty” was another limitation asolder decisions show that such a state was associated withdecorousness of women. This added a dimension of patriarchyand class. One cannot be unmindful of the circumstances in whichthese provisions were enacted by a colonial power, at a time,when women’s agency itself was unacknowledged, or had limitedrecognition. Further, women in India were traditionally-duringthe time of enactment of IPC, in the mid nineteenth century -subordinated to the care of their fathers, or their husbands, orother male relatives. They had no share in immovable property; AB

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Anotions of gender equality were unheard of, or not permitted.Women had no right to vote. Quite naturally, the dignity ofwomen – 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 :B[1995] 4 Suppl. SCR 237; Kalias & Ors. v. State ofMaharashtra (2011) 1 SCC 293 – referred to.

1.4 The advent of the Constitution of India revolutionized-at least in law, all that. Regardless of gender, race, caste, religionor region, or all of the acknowledged sectarian and discriminationCenabling barriers, everyone enjoyed equality of law, and equalprotection of law (Article 14). Further, the provision in Article 15(1) proscribed discrimination by the state (in all its forms) onvarious grounds, including gender. Article 15 (3) enabled thestate to enact special provisions for women and children.[Para 10][999-F; 1000-A-B]

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1.5 The limitations in law in dealing with acts thatundermined the dignity and autonomy of women and children,ranging from behaviour that is now termed “stalking” topornography, or physical contact, and associated acts, which werenot the subject matter of any penal law, were recognized andEappropriate legislative measures adopted, in other countries.These laws contain nuanced provisions criminalizing behaviourthat involve unwanted physical contact of different types and hues,have the propensity to harass and discomfit women andminors (including minors of either sex), or demean them.F[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 ofthese and associated issues. The 172nd report recommendedchanges to the definition of rape, expanding its scope, and alsoGincorporating the expanded definition of sexual assault. These,and India’s ratification of the UN Convention on the Rights ofChildren, 1992, formed the background and basis for enactingPOCSO. [Para 12][1000-D-E]

1.7 Penal Code was sought to be amended through theintroduction of a Bill in 2012, which for some reason, did not seeH

the light of the day; instead, the amendments were made, throughan Ordinance which was later replaced by a Parliamentary Act.These amendments enhanced the punishment for certain offences(including Section 354) and introduced new offences engraftedinto the IPC, such Section 354A, 354B, 354C, 354D. With thisbackdrop, the provisions of POCSO have to be analysed.[Paras 13, 14][1001-D-E; 1002-B]

1.8 The punishment for these offences is directlyproportionate to the severity of the offence. The punishment isalso inversely proportionate to the autonomy exercisable by thechild, with offences against children below the age of 12 yearsfalling under the ‘aggravated’ nature, thus subject to greater termsof imprisonment and fine. Sexual assault is also of an ‘aggravated’nature under Sections 5 and 9 of the Act when committed by aperson in a position of authority or those exercising authorityover children in their care. These sections provide a long list ofexamples. [Paras 15, 16][1002-D, G]

1.9 Section 7 of POCSO has to be viewed having regard tothe mischief rule, the background and history leading up to theenactment of the legislation (including the amendments to IPCin 2013) and to its objects. A plain reading of Section 7 wouldshow that the expression “assault” has a meaning entirelyremoved from the definition of “assault” in Section 351 of IPC.The latter involves an overt gesture, or preparation by oneperson, that causes another to apprehend that the former woulduse criminal force upon the intended victim. The emphasis ofSection 7 is to address the felt social need of outlawing behaviourdriven by sexual intent. [Paras 17, 18][1003-B-E]

1.10 A close analysis of Section 7 reveals that it is broadlydivided into two limbs. Sexual assault, under the first limb isdefined as the touching by a person - with sexual intent - of fourspecific body parts (vagina, penis, anus or breast) of a child, ormaking 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 intentwhich involves physical contactwithout penetration”. The use ofexpression touch appear to be common to the first and second AB

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Aparts of the first limb. “Contact” on the other hand, which is usedin the second limb, has a wider connotation; it encompasses - butis not always limited to-‘touch’. While it is not immediatelyapparent why the term ‘physical contact’ has been used in thesecond limb, its use in conjunction with “any other act” (controlledby the overarching expression “with sexual intent”), indicatesBthat ‘physical contact’ means something which is of wider importthan ‘touching’. Viewed so, physical contact without penetration,may not necessarily involve touch. The “other act” involving“physical contact” may involve: direct physical contact by theoffender, with any other body part (not mentioned in the first limb)Cof the victim; other acts, such as use of an object by the offender,engaging physical contact with the victim; or in the givencircumstances of the case, even no contact by the offender (theexpression “any other act” is sufficiently wide to connote, forinstance, the victim being coerced to touch oneself). [Paras 20,21, 23][1003-H; 1004-A-F]Dhttps://dictionary.cambridge.org/dictionary/english/touch;https://www.collinsdictionary.com/dictionary/english/touch – referred to.

1.11 Parliamentary intent and emphasis, however, is thatEthe offending behavior (whether the touch or other act involvingphysical contact), should be motivated with sexual intent.Parliament moved beyond the four sexual body parts, and coveredacts of a general nature, which when done with sexual intent, arecriminalized by the second limb of Section 7. The specific mentionof the four body parts of the child in the first limb, and the use ofFthe controlling expression “sexual intent” mean that everytouch of those four body parts is prima facie suspect.[Para 24][1004-G; 1005-A]

1.12 The circumstances in which touch or physical contactoccurs would be determinative of whether it is motivated byG‘sexual intent’. There could be a good explanation for suchphysical contact which include the nature of the relationshipbetween the child and the offender, the length of the contact, itspurposefulness; also, if there was a legitimate non-sexual purposefor the contact. Also relevant is where it takes place and theH

conduct of the offender before and after such contact. It would beuseful 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” cannotnecessarily involve contact with a child’s sexual body parts (inone of these cases, the breast) through clothes, is based on adisingenuous argument. Unsurprisingly, that argument had itsroots in other jurisdictions. Such an interpretation not merelylimits the operation of the law, but tends to subvert its intention.It has the effect of “inventions and evasions” meant to continuethe mischief, which Parliament wished to avoid. [Paras 26,28][1005-D; 1006-D]

Regina v H 2005 (1) WLR 2005; State of Iowa v. WalterJames Phipps 442 N.W.2d.611; State of Iowa v KrisKanon Pearson 514 NW 2d 452 – referred to.

1.14 The fallacy in the High Court’s reasoning is that itassumes that indirect touch is not covered by Section 7- or inother words is no “touch” at all. That provision covers and ismeant to cover both direct and indirect touch. In plain English,to touch is to engage in one of the most basic of human sensoryperceptions. The receptors on the surface of the human body areacutely sensitive to the subtleties of a whole range of tactileexperiences. The use of a spoon, for instance, to consume food -without touching it with the hand - in no way diminishes the senseof touch that is experienced by the lips and the mouth. Similarly,when a stick, or other object is pressed onto a person, even whenclothed, their sense of touch is keen enough to feel it. Therefore,the reasoning in the High Court’s judgment quite insensitivelytrivializes - indeed legitimizes - an entire range of unacceptablebehaviour which undermines a child’s dignity and autonomy,through unwanted intrusions. The High Court, therefore clearlyerred in acting on such interpretation, and basing its convictionof and awarding sentence to the respondents; as it did they wereguilty of sexual assault. In the case of S, the conviction is tobe under Section 8. In the case of L, the appropriate convictionis of aggravated sexual assault, under Section 10. [Para 29][1006-D-G]

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A1.15 The term ‘contact’ is comprehended in the expression‘force’ u/s. 349 IPC in such manner, that the causing to anysubstance motion, change of motion, etc. which “brings thatsubstance into contact with any part of that other’s body, or withanything which that other is wearing or carrying, or with anythingso situated that such contact affects that other’s sense of feeling”.BThe idea of ‘contact’ by a person with another through theirclothing would hence, imply a physical contact. This is becauseof a combined operation of Section 2(2) of POCSO and Section349 of IPC. Crucially, neither Section 7 nor any other provisionof POCSO even remotely suggests that ‘direct’ physical contactCunimpeded by clothing is essential for an offence to be committed.[Para 32][1007-D-E; 1008-B]

Dulal Dhar v. State of Tripura 2015 SCC Online Trip188; Tushar Singha v. State of Tripura Crl. (A) J/2/2020; Jitender v. State Crl. (A) 564/2019 – approved.

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1.16 It is no part of any judge’s duty to strain the plainwords of a statute, beyond recognition and to the point of itsdestruction, thereby denying the cry of the times that childrendesperately need the assurance of a law designed to protect theirautonomy and dignity, as POCSO does. [Para 33][1008-C-D]

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Alakh Alok Shrivastava v. Union of India (2018) 17SCC 291 : [2018] 6 SCR 972; Rakesh v. State (GNCTD)2018 SCC Online Del 1179 – referred to.

Case Law Reference

FIn the judgment of TRIVEDI, J:

2008 (16) SCC 518[2004] 2 Suppl. SCR 723[2008] 14 SCR 1249G[2003] 2 SCR 933[2003] 3 Suppl. SCR 24[2014] 9 SCR 182

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.1410 of 2021.

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From the Judgment and Order dated 19.01.2021 of the High Courtof Judicature at Bombay, Nagpur Bench in Criminal Appeal No.161 of2020.

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Criminal Appeal Nos.1411, 1412,1413 And 1414 of 2021.

K. K. Venugopal, AG, Mrs. Geeta Luthra, Sidharth Luthra, Sr.Advs., Rahul Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph, NitinSaluja, Ms. Shivani Luthra Lohiya, Ms. Asmita Narula, Ms. Sasha MariaPaul, Ms. Minakshi Vij, Annopam Prasad, Ayush Kaushik, Angaj Gautam,Akshay Chopra, Ms. Pooja Dhar, Ms. Suhasini Sen, Advs. for theappearing parties.

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The following Judgment and Order of the Court were delivered by

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BELA M. TRIVEDI, J.

1. Leave granted in all appeals.

2. The four Appeals filed by the appellants - Attorney General forIndia, by the National Commission for Women, by the State ofMaharashtra and by the appellant-accused Satish respectively, arisingout of the Judgment and Order dated 19.01.2021 passed in CriminalAppeal No. 161 of 2020 by the High Court of Judicature at Bombay,Nagpur Bench, and the Appeal filed by the Appellant-State ofMaharashtra, arising out of the Judgment and Order dated 15.01.2021passed in the Criminal Appeal No. 445 of 2020 by the same Nagpur G

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[2021] 10 S.C.R.

ABench, encompass similar contextual legal issues, and therefore, permitus this analogous adjudication.

I.Factual matrix in case of the Accused-Satish :-

3. The Extra Joint Additional Sessions Judge, Nagpur (hereinafterreferred to as the Special Court) vide the Judgment and Order dated 5[th]BFebruary, 2020 passed in the Special Child Protection Case No. 28/2017convicted and sentenced the accused-Satish for the offences underSections 342, 354 and 363 of the Indian Penal Code (for short ‘IPC’)and Section 8 of the Protection of Children from Sexual Offences Act,2012 (For short POCSO Act). Being aggrieved by the same, the accused-CSatish had preferred an appeal being Criminal Appeal No. 161 of 2020in the High Court of Judicature at Bombay, Nagpur Bench. By theJudgment and Order dated 19[th] January, 2021, the High Court disposedof the said appeal by acquitting the accused for the offence under Section8 of the POCSO Act, and convicting him for the offence under Sections342 and 354 of the IPC. The accused was sentenced to undergo rigorousDimprisonment for a period of one year and to pay fine of Rs. 500/- indefault thereof to suffer R.I. for one month for the offence under Section354 and to undergo imprisonment for a period of six months and to payfine of Rs. 500/- , in default thereof to suffer R.I. for one month for theoffence under Section 342 of IPC.

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4. The case of the prosecution before the Special Court asemerging from the record was that the informant happened to be themother of the victim aged about 12 years. The accused-Satish wasresiding in the same area where she was residing i.e. Deepak Nagar,Nagpur. On 14.12.2016 at about 11.30 a.m., the victim had gone out toFobtain guava. Since she did not return back for a long time, the informant-mother went in search of the victim. At that time, one lady Sau DivyaUikey who was staying nearby, told her that the neighbouring person(the accused) had taken her daughter along with him to his house. Theinformant, therefore, went to the house of the accused. The accused atthat time came down from the first floor of his house. The informantGhaving made inquiry about her daughter, the accused told her that shewas not there in his house. The informant, however, barged into thehouse of the accused to search her daughter as she heard the shoutscoming from a room situated on the first floor. She went to the first floorand found that the door of the room was bolted from outside. She openedHthe door and found her daughter who was crying in the room. On making inquiry as to what had happened, her daughter told her that the accusedhad asked her to come with him and told her that he would give her aguava. He took her to his house. He then pressed her breast and tried toremove her salwar. At that time, the victim tried to shout but the accusedpressed her mouth. The accused thereafter left the room and bolted thedoor from outside. The informant, on having learnt such facts, went tothe Police Station along with her daughter to lodge the complaint. Thesaid complaint was registered as Crime No. 405/2016 at Police StationGittikhadan, Nagpur. It was further case of the prosecution that whenthe police rushed to the spot, they saw that the accused was trying tocommit suicide by hanging himself. He, therefore, was sent to the hospitalfor treatment. The spot panchanama was drawn and the statement ofthe victim was got recorded under Section 164 of Code of CriminalProcedure before the Magistrate. After the completion of theinvestigation, the charge-sheet was filed in the Special Court, Nagpuragainst the accused. The Special Court after appreciating the evidenceon record, passed the Judgment and Order of conviction and sentenceas stated hereinabove.

5. The High Court in the appeal filed by the accused-Satishacquitted the accused for the offence under Section 8 of the POCSOAct and convicted him for the minor offence under Sections 342 and354 of IPC by making following observations:

“18. Evidently, it is not the case of the prosecution that theappellant removed her top and pressed her breast. Thepunishment provided for offence of ‘sexual assault’ isimprisonment of either description for a term which shall notbe less than three years but which may extend to five years,and shall also be liable to fine. Considering the stringentnature of punishment provided for the offence, in the opinionof this Court, stricter proof and serious allegations arerequired. The act of pressing of breast of the child aged 12years, in the absence of any specific details as to whether thetop was removed or whether he inserted his hand inside topand pressed her breast, would not fall in the definition of‘sexual assault’. It would certainly fall within thedefinitionof the offence under Section 354 of the Indian Penal Code.For ready reference, Section 354 of the Indian Penal Code isreproduced below:

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“354. Assault or criminal force to woman with intent to outrageher modesty. - Whoever assaults or uses criminal force to anywoman, with the intention to outrage her modesty, shall bepunished with imprisonment of either description for a termwhich shall not be less than one year but which may extendto five years, and shall also be liable to fine.”

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19. So, the act of pressing breast can be a criminal force to awoman/girl with the intention to outrage her modesty. Theminimum punishment provided for this offence is one year,which may extend to five years and shall also be liable tofine.

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20 to 25 ———————

26. It is not possible to accept this submission for the aforesaidreasons. Admittedly, it is not the case of the prosecution thatthe appellant removed her top and pressed her breast. As such,Dthere is no direct physical contact i.e. skin to skin with sexualintent without penetration.

6. The above observations/findings made by the High Court, havecaused the Attorney General for India, the National Commission forWomen and the State of Maharashtra to file the appeals before thisECourt. The accused has also filed the appeal challenging his convictionfor the offences under Section 354 and 342 of the IPC.

II. Factual matrix in the case of the Accused-Libnus:-

7. The Additional Sessions Judge, Gadchiroli (hereinafter referredto as the Special Court) vide the judgment and order dated 5[th] October,F2020 passed in the Special POCSO case no. 07/2019 convicted andsentenced the accused-Libnus s/o Fransis Kujur for the offencespunishable under Section 448 and 354-A (1)(i) of IPC and Sections 8and 10 read with section 9 (m) and 12 of the POCSO Act. Beingaggrieved by the same, the accused-Libnus had preferred an appealbeing Criminal Appeal No. 445 of 2020 in the High Court of JudicatureGat Bombay, Nagpur Bench. Vide the Judgment and Order dated 15[th]January, 2021, the High Court maintained the conviction of the accusedfor the offences under Sections 448 and 354-A(1)(i) of the IPC readwith Section 12 of the POCSO Act and set aside the conviction of theaccused for the offences under Sections 8 and 10 of the POCSO Act.HThe High Court considering the nature of the alleged acts and the punishment provided for the alleged offences, modified the sentenceimposed by the Special Court to the extent he had already undergone,and directed to set him free.

8. The case of the prosecution before the Special Court asemerging from the record was that the informant happened to be themother of the victim aged about five years. The informant used to dodomestic work at some houses in the town, for which she had to leavehome at about 8.00 o’clock in the morning and return at about 4.00o’clock in the afternoon. On 11.02.2018 at about 8.00 o’clock, she hadleft for her work leaving her two daughters at home. On that day, herhusband had also gone out to village Chavela. When she returned homeat about 4.00 o’clock in the afternoon, she saw one person catching holdof a hand of her elder daughter i.e. victim, and also saw her daughterraising her pant upwards. She, therefore, shouted and asked, who hewas and what was he doing. The said person released the hand of herdaughter and turned back. Thereupon, she found that the said personwas Libnus Fransis who was residing nearby her house. He told her thathe had come to see her husband as he had some work. When he startedleaving, the informant saw that the zip of his pant was open. She,therefore, started shouting and abusing him. On hearing the shouts, herneighbours, namely, Chhaya Dnyanbaji Pagade, Sayabai KailasBarsagade and Madhuri Santosh Kohchade, came rushing to her houseand in the meantime the said Libnus F. Kujur ran away. When she inquiredher daughter as to what had happened, her daughter told her that thesaid Kujur came home asking about her father. When she told him thather father had gone to a village and her mother had gone out for thework, the said Kujur caught her hands and moved her frock upwardwith one hand and lowered her pant with the other hand. He, thereafter,unzipped his pant and showed his penis to her and then asked her to laydown on wooden cot. Her daughter, thereafter, started crying. All theladies gathered there tried to search the accused but he was not found.Thereafter, the informant alongwith her minor daughter, and herneighbours Chhaya Dnyanbaji Pagade and others went to the Gadchirolipolice station to lodge the report against Libnus. The said report of theinformant came to be registered as the Crime bearing No. 63/2018 atthe said police station for the offences punishable under Sections 354-A(1)(i) and 448 of the IPC and Sections 8, 10 and 12 read with Section9(m) and Section 11(i) of the POCSO Act. After the completion of theinvestigation, the charge-sheet was filed before the Special Court, Nagpur.

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AThe Special Court after appreciating the evidence on record passed theJudgment and Order of Conviction and sentence as stated hereinabove.

9. The High Court in the appeal filed by the accused-Libnus whilesetting aside the conviction for the offences under Sections 8 and 10 ofthe POCSO Act and maintaining the conviction for the offences underBSections 448 and 354-A(1)(i) of IPC read with Section 12 of the POCSOAct observed as under:

“9. In the case in hand undisputedly, the age of the prosecutrixis five years. If the offence of ‘sexual assault’ is provedagainst the appellant/accused, the prosecutrix, being of agebelow twelve years, the conviction has to be recorded for theoffence of ‘aggravated sexual assault’.

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10. The punishment for aggravated sexual assault isimprisonment of either description for a term which shall notbe less than five years but which may extend to seven years,and shall also be liable to fine.

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11. The appellant/accused is prosecuted for the charge of‘aggravated sexual assault’. As per the definition of ‘sexualassault’ a ‘physical contact with sexual intent withoutpenetration’ is essential ingredient for the offence. Thedefinition starts with the words - “whoever with sexual intenttouches the vagina, penis, anus or breast of the child or makesthe child touch the vagina, penis, anus or breast of suchperson or any other person or does any other act with ‘sexualintent…….’ The words ‘any other act’ encompasses within itself,the nature of the acts which are similar to the acts which havebeen specifically mentioned in the definition on the premiseof the principle of ‘ejusdem generis’. The act should be ofthe same nature or closure to that. The acts of ‘holding thehands of the prosecutrix’ or ‘opened zip of the pant’ as hasbeen allegedly witnessed by PW-1, in the opinion of this Court,does not fit in the definition of ‘sexual assault’.

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12. The minimum sentence of this offence is five yearsimprisonment. Considering the nature of the offence and thesentence prescribed, the aforesaid acts are not sufficient forfixing the criminal liability on the appellant/accused for thealleged offence of ‘aggravated sexual assault’. At the most H

the minor offence punishable under Section 354-A(1) (I) ofthe IPC r/w Section 12 of the POCSO Act is proved againstthe appellant.

13. In this view of the matter, the prosecution could establishthat appellant/accused entered into the house of theprosecutrix with the intention of outraged her modesty orsexual harassment as defined u/s 11 of the POCSO Act.Therefore, the conviction of the appellant/accused for theoffence punishable under Sections 448 and 354-A(1)(i) ofthe IPC r/w Section 12 of the POCSO Act is maintained. Thepunishment provided for the offence u/s 345-A(1)(i) of theIPC and Section 12 of the POCSO Act is sentence for a termwhich may extend to 3 years or/and fine or with both. Thepunishment for the offence of house trespass is imprisonmentfor a term upto one year and fine upto Rs.1000 or with both.It is informed that till date the appellant/accused hasundergone total imprisonment of about 5 months”.

10. Being aggrieved by the said Judgment and Order passed bythe High Court, the State of Maharashtra has filed the present appeal.

Submissions:

11. We have heard the learned Attorney General for India Mr.K.K. Venugopal, the learned senior advocate Ms. Geeta Luthra appearingfor the National Commission for Women, the learned advocate Mr. RahulChitnis appearing on behalf of the State of Maharashtra, the learnedamicus curiae Mr. Siddharth Dave to assist the Court and the learnedsenior advocate Mr. Siddharth Luthra appearing on behalf of The SupremeCourt Legal Services Committee for the accused–Satish and the accusedLibnus.

12. The learned Attorney General for India, Mr. K.K. Venugopalexpressing grave concern about the manner in which the provisionscontained in the POCSO Act were interpreted by the High Court,vehemently submitted that such interpretation would lead to devastatingeffect in the society at large. According to him, the High Court could nothave acquitted the accused-Satish mis-interpreting the provisionscontained in Section 7 on the ground that there was no direct physicalcontact i.e. skin to skin contact made by the accused with the victim. Hesubmitted that all the alleged acts of the accused i.e. taking the victim to AB

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Ahis house, trying to remove her salwar, pressing her breast and pressingher mouth when she started shouting, were the acts amounting to “sexualassault” within the meaning of Section 7 punishable with Section 8 ofthe POCSO Act.

13. Supplementing the said submissions made by the learnedBAttorney General, the learned Senior Counsel Ms. Geeta Luthra reliedupon the objects and reasons for enacting the POCSO Act to submitthat since the sexual offences against women were not adequatelyaddressed by the existing laws, the POCSO Act was specifically enactedto protect the children from the offences of sexual assault, sexualharassment and pornography. Ms. Luthra also relied upon the views ofCthe Parliamentary Committee appointed for the purpose of examiningthe Bill with regard to the Protection of children from sexual harassmentto submit that the sexual offences as defined in Clauses 3 and 7 of theBill intended to cover all the likely situations required to be coveredthereunder. Ms. Luthra also relied upon a number of judgments of variousDcourts of the United Kingdom and of the United States of America, asalso of this Court to emphasis the legislative intent behind enacting thePOCSO Act. Taking the court to the dictionary meaning of the word‘touch’, ‘physical contact’ and ‘sexual intent’, she empatheticallysubmitted that the legislature has interchangeably used the words ‘touch’and ‘physical contact’ in Section 7 and therefore, restricting the meaningEof the word ‘physical contact’ to ‘skin to skin contact’ would be a narrowinterpretation of the said provision, defeating the very object of the Act.She also pointed out that the High Court had grossly erred in applyingthe principle of ‘ejusdem generis’, which otherwise should not applywhere it would defeat the object of the enactment. Similarly, according Fto Ms. Luthra, the Rule of Lenity also would not be applicable, therebeing no obscurity or uncertainty in the provisions of the POCSO Act.

14. The learned senior advocate Mr. Siddharth Dave, appointedas an amicus curiae also took the Court to the scheme of the POCSOAct, and specifically to Sections 2 and 3 to submit that what is importantGfor the purpose of Section 7 is “sexual intent”. Bisecting Section 7 intotwo parts, Mr. Dave submitted that the first part thereof pertains to theact of touching with sexual intent the vagina, penis, anus or breast of thechild or making the child touch the said organs of such person or anyother person, and the second part pertains to ‘any other act’ with sexualintent which involves physical contact without penetration. Thus,H

according to him, in both the limbs of Section 7, the mens rea i.e. culpablemental state - the sexual intent of the person accused of the said offenceis very material. Pressing into service Section 29 & 30 of the POCSOAct, Mr. Dave submitted that the Court is required to presume theexistence of culpable mental state on the part of the accused, and it isfor the accused to prove in defence that he had no such mental statewith respect to the act charged as an offence. Mr. Dave also reliedupon the unreported judgments of various High Courts to buttress hissubmission that touching in an indecent manner with culpable mentalstate, would amount to “sexual assault” within the meaning of Section 7of the said Act, even though there was no ‘skin to skin contact’ betweenthe victim and the accused.

15. Mr. Rahul Chitnis, learned advocate appearing on behalf ofthe State of Maharashtra adopting the submissions made by the learnedAttorney General for India, Ms. Geeta Luthra and learned amicus curiaeMr. Siddharth Dave, submitted that if the interpretation of section 7 ofthe POCSO Act made by the High Court is accepted, the very object ofthe Act would be negated.

16. Per contra, Mr. Sidharth Luthra, learned senior advocateappearing for the accused in both the cases, relied upon various provisionsof the POCSO Act and of the IPC to submit that the offence underSection 354 of IPC has a different connotation and different effect,which could not be incorporated for the purpose of interpreting Section7 of the POCSO Act. According to him, the phrases ‘sexual intent’,‘touches’ and ‘physical contact’ have not been defined in the POCSOAct, however the explanation to Section 11 states that any question whichinvolves ‘sexual intent’ shall be a question of fact. Placing reliance onthe decision of the Bombay High Court in case of Bandu VithalraoBorwar v/s State of Maharashtra, in Criminal Appeal No. 50 of 2016,decided on 17.10.2016, he submitted that the expression “sexual intent”can not be confined to any predetermined format or structure. He furthersubmitted that unlike POCSO Act, the IPC offence under section 354uses the terms ‘assault’ and ‘criminal force’. However, since ‘sexualassault’ is defined under the POCSO Act, the definition of the words‘assault’ or ‘criminal force’ contained in IPC cannot be imported intothe POCSO Act, though permitted under section 2(2) of the POCSOAct. While fairly conceding that the first part of Section 7 of the POCSOAct, which pertains to the act of touching the private parts of the child, AB

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Amay not require ‘skin to skin contact’, he however submitted that so faras, the second part i.e. “ the other act with sexual intent which involvesphysical contact without penetration” is concerned, ‘the skin to skincontact’ is required to be proved by the prosecution.

17. As regards the presumption under Sections 29 and 30 of theBPOCSO Act, Mr. Luthra tried to draw an analogy from similar provisionscontained in the NDPS Act and submitted that the presumption andreverse burden of proof on the accused makes it difficult for an accusedto prove his innocence. Therefore, any interpretation other than the strictinterpretation would expand the scope of the offence and would notfurther the constitutional objective of Article 21. In this regard, he hasCplaced reliance on the decisions of this Court in the Case of Noor Agavs. State of Punjab and Anr1,Sakshi vs. Union of India 2 and R.3Kalyani vs Janak C. Mehta & Ors.

18. Invoking the Rule of Lenity, Mr. Luthra submitted that thisrule of statutory construction requires a court to resolve statutoryDambiguity in a criminal statute in favour of the accused or to strictlyconstrue the statute against the State. In this regard, he has relied uponthe decisions of the United States Supreme Court in the case of “TheUnited States vs. Wilt Berger[4]; Connally v. General ConstructionCo.[5] and in case of United States vs. Kozminski[6].

E19. Mr. Luthra, learned senior counsel also took the Court to theoral evidence adduced in both the cases and submitted that there werenumber of contradictions in the evidence of the informant and thewitnesses examined by the prosecution and that it would be risky toconvict the accused for the alleged offences under the POCSO Act onFsuch unreliable and sketchy evidence.

Legal Provisions:

20. Before adverting to the rival submissions made by the learnedcounsels for the parties, apt would be to refer to the relevant provisionsof the POCSO Act. As the long title of the Protection of Children fromGSexual Offence Act, 2012 states, the Act has been enacted to protect

1. 2008 (16) SCC 5182. 2004 (5) SCC 5183. 2009 (1) SCC 5164. 18 US 76 (1820)5. 269 U.S. 385 (1926)H6. 487 U.S. 931 (1988)

the children from the offences of sexual assault, sexual harassment andpornography and provide for establishment of special courts for trial ofsuch offences and for the matters connected therewith or incidentalthereto.

21. Section 7 pertaining to “sexual assault” reads as under:

“7. Whoever, with sexual intent touches the vagina, penis,anus or breast of the child or makes the child touch thevagina, penis, anus or breast of such person or any otherperson, or does any other act with sexual intent which involvesphysical contact without penetration is said to commit sexualassault.

22. Section 8 providing for the punishment for sexual assault, readsas under :

“8 - Whoever, commits sexual assault, shall be punished withimprisonment of either description for a term which shall notbe less than three years but which may extend to five years,and shall also be liable to fine.

23. Section 9 of the Act enumerates as to what is said to commitaggravated sexual assault. Clause (m) of the said provision being relevantis reproduced as under:

9(m)- whoever commits sexual assault on a child below twelveyears;

24. Section 10 for providing Punishment for aggravated sexualassault –

“10- whoever, commits aggravated sexual assault shall bepunished with imprisonment of either description for a termwhich shall not be less than five years but which may extendto seven years, and shall also be liable to fine”.

25. Section 11 pertains to “sexual harassment” - A person said tocommit sexual harassment upon a child when such person with sexualintent - “(i) – utters any word or makes any sound, or makes anygesture or exhibits any object or part of body with the intentionthat such word or sound shall be heard, or such gesture orobject or part of body shall be seen by the child; or

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A(ii) makes a child exhibit his body or any part of his body soas it is seen by such person or any other person;

(iii) to (vi) ……….

Explanation – Any question which involves “sexual intent”shall be a question of fact.B

26. Section 12 for providing punishment for sexual harassment “12 – whoever, commits sexual harassment upon a child shallbe punished with imprisonment of either description for aterm which may extend to three years and shall also liable toCfine.”

27. Sections 29 and 30 pertaining to the statutory presumptionsread as under:

“29 -When a person is prosecuted for committing or abettingor attempting to commit any offence under Section 3, 5, 7Dand Section 9 of this Act, the Special Court shall presume,that such person has committed or abetted or attempted tocommit the offence, as the case may be, unless the contrary isproved.”

“30 - (1) In any prosecution for any offence under this ActEwhich requires a culpable mental state on the part of theaccused, the Special Court shall presume the existence of suchmental state but it shall be a defence for the accused to provethe fact that he had no such mental state with respect to theact charged as an offence in that prosecution.

F(2) For the purposes of this section, a fact is said to be provedonly when the Special Court believes it to exist beyondreasonable doubt and not merely when its existence isestablished by a preponderance of probability”.

Explanation – In this section, “culpable mental state” includesGintention, motive, knowledge of a fact and the belief in, orreason to believe, a fact.

-Analysis:

28. In both the cases, the main controversy centers around theinterpretation of Section 7 of the POCSO Act. It is trite saying thatH

while interpreting a statute, the courts should strive to ascertain theintention of the Legislature enacting it, and it is the duty of the Courts toaccept an interpretation or construction which promotes the object ofthe legislation and prevents its possible abuse. As observed by the SupremeCourt in the case of J.P. Bansal vs. State of Rajasthan & Anr. Reportedin AIR (2003) SC 1405, a statute is an edict of the legislature. Theelementary principle of interpreting or construing a statute is to gatherthe mens or sententia legis, the true intention of the Legislature. It hasbeen observed therein that :

“12. Interpretation postulates the search for the true meaningof the words used in the statute as a medium of expression tocommunicate a particular thought. The task is not easy as the“language” is often misunderstood even in ordinaryconversation or correspondence. The tragedy is that althoughin the matter of correspondence or conversation the personwho has spoken the words or used the language can beapproached for clarification, the legislature cannot beapproached as the legislature, after enacting a law or Act,becomes functus officio so far as that particular Act isconcerned and it cannot itself interpret it. No doubt, thelegislature retains the power to amend or repeal the law somade and can also declare its meaning, but that can be doneonly by making another law or statute after undertaking thewhole process of law-making.

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16. Where, therefore, the “language” is clear, the intentionof the legislature is to be gathered from the language used.What is to be borne in mind is as to what has been said in thestatute as also what has not been said. A construction whichrequires, for its support, addition or substitution of words orwhich results in rejection of words, has to be avoided, unlessit is covered by the rule of exception, including that ofnecessity, which is not the case here. [See: Gwalior RayonsSilk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests [AIR1990 SC 1747 at p. 1752, Shyam Kishori Devi v. PatnaMunicipal Corpn. [AIR 1966 SC 1678 at p. 1682); A.R.Antulay v. Ramdas Sriniwas Nayak [(1984) 2 SCC 500, atpp. 518, 519)]. Indeed, the Court cannot reframe the AB

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legislation as it has no power to legislate. [See: State of Keralav. Mathai Verghese [(1986) 4 SCC 746, at p. 749); Union ofIndia v. Deoki Nandan Aggarwal [AIR 1992 SC 96 at p.101).]”

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29. In the case of Balaram Kumawat Vs. Union of India &BOrs. reported in (2003) 7 SCC 628, this Court while elaboratelydiscussing the basic rules of interpretation observed as under:

“20. Contextual reading is a well-known proposition ofinterpretation of statute. The clauses of a statute should beconstrued with reference to the context vis-à-vis the otherprovisions so as to make a consistent enactment of the wholestatute relating to the subject-matter. The rule of “ex visceribusactus” should be resorted to in a situation of this nature.

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21. In State of W.B. v.Union of India (AIR at p. 1265, para68), the learned Chief Justice stated the law thus:

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“The Court must ascertain the intention of the legislature bydirecting its attention not merely to the clauses to be construedbut to the entire statute; it must compare the clause with theother parts of the law, and the setting in which the clause tobe interpreted occurs.”

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22. The said principle has been reiterated in R.S. Raghunathv. State of Karnataka [(1992) 1 SCC 335 : 1992 SCC (L&S)286 : (1992) 19 ATC 507 : AIR 1992 SC 81] (AIR at p. 89).

23. Furthermore, even in relation to a penal statute any narrowand pedantic, literal and lexical construction may not alwaysFbe given effect to. The law would have to be interpreted havingregard to the subject-matter of the offence and the object ofthe law it seeks to achieve. The purpose of the law is not toallow the offender to sneak out of the meshes of law. Criminaljurisprudence does not say so.

G26. The courts will therefore reject that construction whichwill defeat the plain intention of the legislature even thoughthere may be some inexactitude in the language used. [SeeSalmonv. Duncombe[(1886) 11 AC 627 : 55 LJPC 69 : 55 LT446 (PC)] (AC at p. 634).] Reducing the legislation futilityshall be avoided and in a case where the intention of the H

legislature cannot be given effect to, the courts would acceptthe bolder construction for the purpose of bringing about aneffective result. The courts, when rule of purposiveconstruction is gaining momentum, should be very reluctantto hold that Parliament has achieved nothing by the languageit used when it is tolerably plain what it seeks to achieve.[See BBC Enterprises v. Hi-Tech Xtravision Ltd.[(1990) 2 AllER 118 : 1990 Ch 609 : (1990) 2 WLR 1123 (CA)] (All ER atpp. 122-23).]”

30. So far as the object of enacting the POCSO Act is concerned,as transpiring from the statement of objects and reasons, since the sexualoffences against children were not adequately addressed by the existinglaws and a large number of such offences were neither specificallyprovided for nor were they adequately penalized, the POCSO Act wasenacted to protect the children from the offences of sexual assault, sexualharassment and pornography and to provide for establishment of specialCourts for trial of such offences and for matters connected therewithand incidental thereto. While enacting the said Act, Article 15 of theConstitution which empowers the State to make special provisions forchildren, and the Convention on the Rights of the Child, adopted by theGeneral Assembly of the United Nations, as acceded to by theGovernment of India, prescribing a set of standards to be followed by allthe State parties in securing the best interest of the child, were also keptin view. The POCSO Bill intended to enforce the rights of all children tosafety, security and protection from sexual abuse and exploitation, andalso intended to define explicitly the offences against children counteredthrough commensurate penalties as an effective deterrence.

31. Now, from the bare reading of Section 7 of the Act, whichpertains to the “sexual assault”, it appears that it is in two parts. Thefirst part of the Section mentions about the act of touching the specificsexual parts of the body with sexual intent. The second part mentionsabout “any other act” done with sexual intent which involves physicalcontact without penetration. Since the bone of contention is raised byLd. Senior Advocate, Mr. Luthra with regard to the words “Touch”, and“Physical Contact” used in the said section, it would be beneficial first torefer to the dictionary meaning of the said words.

32. The word “Touch” as defined in the Oxford AdvancedLearner’s Dictionary means “the sense that enables you to be aware of A

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Athings and what are like when you put your hands and fingers on them”.The word “physical“ as defined in the Advanced Law Lexicon, 3[rd] Edition,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 of Ms.BGeetha Luthra, learned senior Advocate appearing for the NationalCommission for Women that both the said words have beeninterchangeably 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.CTherefore, the act of touching the sexual part of body or any other actinvolving physical contact, if done with “sexual intent” would amount to“sexual assault” within the meaning of Section 7 of the POCSO Act.

33. There cannot be any disagreement with the submission madeby Mr. Luthra for the accused that the expression “sexual intent” havingDnot been explained in Section 7, it cannot be confined to any predeterminedformat or structure and that it would be a question of fact, however, thesubmission of Mr. Luthra that the expression ‘physical contact’ used inSection 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 MagisValeat Quam Pereat”, the construction of a rule should give effect toEthe rule rather than destroying it. Any narrow and pedantic interpretationof the provision which would defeat the object of the provision, cannotbe accepted. It is also needless to say that where the intention of theLegislature cannot be given effect to, the courts would accept the bolderconstruction for the purpose of bringing about an effective result.FRestricting the interpretation of the words “touch” or “physical contact”to “skin to skin contact” would not only be a narrow and pedanticinterpretation of the provision contained in Section 7 of the POCSO Act,but it would lead to an absurd interpretation of the said provision. “skinto skin contact” for constituting an offence of “sexual assault” could not have been intended or contemplated by the Legislature. The very objectGof 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 verydetrimental situation, frustrating the very object of the Act, inasmuch asin that case touching the sexual or non sexual parts of the body of a childwith gloves, condoms, sheets or with cloth, though done with sexualHintent would not amount to an offence of sexual assault under Section 7

of the POCSO Act. The most important ingredient for constituting theoffence of sexual assault under Section 7 of the Act is the “sexual intent”and not the “skin to skin” contact with the child.

34. At this juncture, it may also be beneficial to refer to theobservations made by the Foreign Courts in the judgments cited by Ms.Geetha Luthra, wherein the said courts while interpreting analogousprovisions as prevalent in such countries, have held that “skin to skincontact” is not required to constitute an offence of sexual assault. It isnot the presence or lack of intervening material which should be focusedupon, but whether the contact made through the material, comes withinthe definition prescribed for a particular statue, has to be seen. Of course,the judgments of the said courts proceed on the interpretation arising outof the terms defined in the provisions contained in the concernedlegislations and are not pari-materia to the language of Section 7 of thePOCSO Act, nonetheless they would be relevant for the purpose ofinterpreting the expression “touch” and “sexual assault”. In Regina v.H (2005) 1 WLR 2005, the Court of Appeal while interpreting theword “touching” contained in Section 3 of the Sexual Offences Act,2003 as in force in U.K, observed that the touching of clothing wouldconstitute “touching” for the purpose of said Section 3. Similarly, in Stateof Iowa V. Walter James Phipps 442 N.W.2d.611 the Court of Appealsof Iowa held that a lack of skin-to-skin contact alone does not as amatter of law put the defendant’s conduct outside the definition of “sexact” or “sexual activity”, which has been defined in Section 702.17 ofIowa Code.

35. The act of touching any sexual part of the body of a child withsexual intent or any other act involving physical contact with sexualintent, could not be trivialized or held insignificant or peripheral so as toexclude such act from the purview of “sexual assault” under Section 7.As held by this court in case of Balaram Kumawat Vs. Union of India(supra), the law would have to be interpreted having regard to the subjectmatter of the offence and to the object of the law it seeks to achieve.The purpose of the law cannot be to allow the offender to sneak out ofthe meshes of law.

36. It may also be pertinent to note that having regard to theseriousness of the offences under the POCSO Act, the Legislature hasincorporated certain statutory presumptions. Section 29 permits theSpecial Court to presume, when a person is prosecuted for committing AB

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Aor abetting or attempting to commit any offence under Section 3, 5, 7and Section 9 of the Act, that such person has committed or abetted orattempted to commit the offence, as the case may be, unless the contraryis proved. Similarly, Section 30 thereof permits the Special Court topresume for any offence under the Act which requires a culpable mentalstate on the part of the accused, the existence of such mental state. OfBcourse, the accused can take a defence and prove the fact that he hadno such mental state with respect to the act charged as an offence inthat prosecution. It may further be noted that though as per sub section(2) of Section 30, for the purposes of the said section, a fact is said to beproved only when the Special Court believes it to exist beyond reasonableCdoubt and not merely when its existence is established by a preponderanceof probability, the Explanation to Section 30 clarifies that “culpable mentalstate” 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 theExplanation to Section 11, “sexual intent” would be a question of fact,Dthe Special Court, when it believes the existence of a fact beyondreasonable doubt, can raise a presumption under Section 30 as regardsthe existence of “culpable mental state” on the part of the accused.37. This takes the Court to the next argument of Mr. Luthra thatthere being an ambiguity, due to lack of definition of the expressions -E“sexual intent”, “any other act”, “touching” and “physical contact”, usedin Section 7, coupled with the presumptions under Sections 29 and 30 ofthe Act, the reverse burden of proof on the accused would make itdifficult for him to prove his innocence and, therefore, the POCSO Actmust be strictly interpreted. In the opinion of the Court, there cannot beFany disagreement with the said submission of Mr. Luthra. In fact it hasbeen laid down by this Court in catina of decisions that the Penal Statuteenacting an offence or imposing a penalty has to be strictly construed. Abeneficial reference of the decisions in the case of Sakshi vs. Union ofIndia reported in (2004) 5 SCC 518, in the case of R. Kalyani vs Janak C. Mehta & Ors reported in (2009) 1 SCC 516 and in theGcase of State of Punjab v. Gurmeet Singh (2014) 9 SCC 632 bemade in this regard. However, it is equally settled legal position that theclauses of a statute should be construed with reference to the contextvis-a-vis the other provisions so as to make a consistent enactment ofthe whole Statute relating to the subject matter. The Court can not beHoblivious to the fact that the impact of traumatic sexual assault committed on children of tender age could endure during their whole life, and mayalso have an adverse effect on their mental state. The suffering of thevictims in certain cases may be immeasurable. Therefore, consideringthe objects of the POCSO Act, its provisions, more particularly pertainingto 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 moremeaningful and effective.

38. The invocation of “Rule of lenity” at the instance of Mr. Luthra,learned senior Advocate is also thoroughly misconceived. Placing relianceon the various judgments of the United States Supreme Court incase of Ladner vs. United States, 358 US 169; United States vs.Kozminski, 487 US 931; United States vs. Wiltberger, 18 US 76,Mr. Luthra had sought to submit that the “Rule of Lenity” requires acourt to resolve statutory ambiguity in a criminal statute in favour of theaccused, or to strictly construe the statute against the State. The saidsubmission of Mr. Luthra cannot be accepted in view of the settledproposition of law that the statutory ambiguity should be invoked as alast resort of interpretation. Where the Legislature has manifested itsintention, courts may not manufacture ambiguity in order to defeat thatintent. In this regard, Ms. Geetha Luthra has rightly relied upon theprecise observations made by the Court of Appeal, California, in case ofThe People vs. REID II, 246 Cal. App. 4[Th], 822 as follows:

“[T]he ‘touchstone’ of the rule of lenity ‘is statutoryambiguity.’ [Citation.]” (Bifulco v. United States (1980) 447U.S. 381, 387, 100 S. Ct. 2247, 65 L.ED.2d 205.) “ ‘the rule… applies only if the court can do no more than guess whatthe legislative body intended; there must be an egregiousambiguity and uncertainty to justify invoking the rule.’ “(People v. Avery (2002) 27 Cal. 4[Th] 49, 58, 115 Cal. Rptr.2d403, 38 P.3d 1.) “Where the Legislature has manifested itsintention, courts may not manufacture ambiguity in order todefeat that intent.” (Bifulco v. United States supra, at p. 387,100 S. Ct. 2247.) Additionally, “ambiguities are not interpretedin the defendant’s favor if such an interpretation wouldprovide an absurd result, or a result inconsistent with apparentlegislative intent. (People v. Cruz (1996) 13 Cal. 4[Th] 764, 783,55 Cal. Rptr. 2D 117, 919 P. 2d 731.)”

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39. It is also trite that a court should not be over zealous in searchingfor ambiguities or obscurities in words which are plain. (IRC vs.Rossminster Ltd. (1980) 1 AllER 80). So far as the provisions containedin Section 7 of the POCSO Act are concerned, the court does not findany ambiguity or obscurity so as to invoke the Rule of Lenity.

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40. In the light of the afore-discussed legal position, if the findingsrecorded by the High Court are appreciated, it clearly emerges that theHigh Court fell into error in case of the accused-Satish in holding himguilty for the minor offences under Sections 342 and 354 of IPC andCacquitting him for the offence under Section 8 of the POCSO Act. TheHigh Court while specifically accepting the consistent versions of thevictim and her mother i.e. informant about the accused having taken thevictim to his house, having pressed the breast of the victim, havingattempted to remove her salwar and pressing her mouth, had committedgross error in holding that the act of pressing of breast of the child agedD12 years in absence of any specific details as to whether the top wasremoved or whether he inserted his hands inside the top and pressed herbreast, would not fall in the definition of sexual assault, and would fallwithin the definition of offence under Section 354 of the IPC. The HighCourt further erred in holding that there was no offence since there wasEno direct physical contact i.e. “skin to skin” with sexual intent.

41. The interpretation of Section 7 at the instance of the HighCourt on the premise of the principle of “ejusdem generis” is alsothoroughly misconceived. It may be noted that the principle of “ejusdemgeneris” should be applied only as an aid to the construction of theFstatute. It should not be applied where it would defeat the very legislativeintent. As per the settled legal position, if the specific words used in thesection exhaust a class, it has to be construed that the legislative intentwas to use the general word beyond the class denoted by the specificwords. So far as Section 7 of the POCSO Act is concerned, the firstpart thereof exhausts a class of act of sexual assault using specific words,Gand the other part uses the general act beyond the class denoted by thespecific words. In other words, whoever, with sexual intent touches thevagina, penis, anus or breast of the child or makes the child touch thevagina, penis, anus or breast of such person or any other person, wouldbe committing an offence of “sexual assault”. Similarly, whoever doesHany other act with sexual intent which involves physical contact without penetration, would also be committing the offence of “sexual assault”under Section 7 of the POCSO Act. In view of the discussion madeearlier, the prosecution was not required to prove a “skin to skin” contactfor the purpose of proving the charge of sexual assault under Section 7of the Act.

42. The surrounding circumstances like the accused having takenthe victim to his house, the accused having lied to the mother of thevictim that the victim was not in his house, the mother having found herdaughter in the room on the first floor of the house of the accused andthe victim having narrated the incident to her mother, were proved bythe prosecution, rather the said facts had remained unchallenged at theinstance of the accused. Such basic facts having been proved by theprosecution, the Court was entitled to raise the statutory presumptionabout the culpable mental state of the accused as permitted to be raisedunder Section 30 of the said Act. The said presumption has not beenrebutted by the accused, by proving that he had no such mental state.The allegation of sexual intent as contemplated under Section 7 of theAct, therefore, had also stood proved by the prosecution. The Court,therefore, is of the opinion that the prosecution had duly proved not onlythe sexual intent on the part of the accused but had also proved thealleged acts that he had pressed the breast of the victim, attempted toremove her salwar and had also exercised force by pressing her mouth.All these acts were the acts of “sexual assault” as contemplated undersection 7, punishable under Section 8 of the POCSO Act.

43. So far as the case of the other accused-Libnus is concerned,the High Court vide its impugned judgment and order, while maintainingthe conviction of the accused for the offences punishable under sections448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSOAct, has acquitted the accused for the offence under Sections 8 and 10of the POCSO Act. Pertinently the High Court while recording the findingthat the prosecution had established that the accused had entered intothe house of the prosecutrix with the intention to outrage her modesty,also held that the acts “holding the hands of the prosecutrix” or “openedthe zip of the pant” did not fit in the definition of sexual assault. In theopinion of the Court, the High Court had fallen into a grave error inrecording such findings. When the alleged acts of entering the house ofthe prosecutrix with sexual intent to outrage her modesty, of holding herhands and opening the zip of his pant showing his penis, are held to be A

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Aestablished by the prosecution, there was no reason for the High Courtnot to treat such acts as the acts of “sexual assault” within the meaningof Section 7 of the POCSO Act. The High Court appears to have beenswayed away by the minimum punishment of five years prescribed forthe offence of “aggravated sexual assault” under Section 10 of thePOCSO Act as the age of the prosecutrix was five years and the sexualBassault if committed on the victim who is below 12 years is required tobe treated as the “aggravated sexual assault” as per Section 9(m) of theAct. However, neither the term of minimum punishment nor the age ofthe victim could be a ground to allow the accused to escape from theclutches of Section 7 of the POCSO Act. The alleged acts of the accusedCin entering the house of the prosecutrix with sexual intent to outrage hermodesty, holding her hands and unzipping his pant showing his penis tothe prosecutrix having been held to be proved by the prosecution, theywould certainly be the acts falling within the purview of the “sexualassault” as contemplated in the second part of Section 7 i.e. “……… ordoes any other act with sexual intent which involves physical contactDwithout penetration”. The Court, therefore, has no hesitation in holdingthat the accused-Libnus had committed an offence of “sexual assault”within the meaning of Section 7 of the POCSO Act and the prosecutrixbeing below the age of 12 years, he had committed an offence of“aggravated sexual assault” as contemplated under Section 9(m) of theEsaid Act, liable to be punished with the imprisonment for a term not lessthan five years under Section 10 of the POCSO Act. In that view of thematter, the judgment and order of the High Court insofar as it has setaside the conviction of the accused-Libnus for the offences under Section8 and 10 of the POCSO Act is liable to be set aside, and the judgmentand order of conviction and sentence passed by the Special Court isFrequired to be restored.

Order

44. In the aforesaid premises, the judgments and orders dated19.01.2021 and 15.01.2021 passed by the High Court of Judicature atGBombay, Nagpur Bench, at Nagpur in Criminal Appeal No. 161 of 2020and Criminal Appeal No. 445 of 2020 respectively are hereby quashedand set aside; and the judgments and orders dated 05.02.2020 and05.10.2020 passed by the Extra Joint Additional Sessions Judge, Nagpurin Special Child Protection Case No. 28 of 2017 and by the SpecialCourt, Gadchiroli in POCSO Case No. 07/2019 are restored.H

45. Accordingly, the accused-Satish is hereby convicted for theoffences punishable under Section 8 of the POCSO Act and underSections 342, 354 and 363 of the IPC. He is directed to undergo rigorousimprisonment for a period of three years and to pay fine of Rs.500/- andin default thereof to suffer simple imprisonment for a period of one monthfor the offence under Section 8 of the POCSO Act. Since he has beensentenced for the major offence under Section 8 of the POCSO Act, noseparate sentence is imposed upon him for the other offences under theIPC.

46. The accused-Libnus s/o Fransis Kujur is hereby convicted forthe offences punishable under Sections 354-A (1)(i) and 448 of the IPCas also for the offences under Sections 8, 12 and 10 read with Section9(m) of the POCSO Act. He is directed to undergo rigorous imprisonmentfor a period of five years for the offence under Section 10 of the POCSOAct and to pay fine of Rs. 25,000/- (Rupees twenty five thousand only)and in default thereof to suffer simple imprisonment for a period of sixmonths. Since he has been sentenced for the major offence under Section10 of the POCSO Act, no separate sentence is being imposed upon himfor the other offences under the IPC and the POCSO Act.

47. Both accused – Satish and Libnus are directed to surrenderthemselves before the concerned Special Courts, within four weeks fromtoday.

48. Before parting, it may be noted that in the case of the accused-Libnus, the State of Maharashtra while filing the Appeal before thisCourt had not produced the certified copy of the judgment of the HighCourt, however, had produced a copy of a certified copy, wherein theHigh Court had recorded acquittal of the accused for the offence underSections 8, 10 and 12 of the POCSO Act, while maintaining his convictionunder Sections 448 and 354-A(1)(i) of the IPC, whereas in the copy ofthe impugned judgment of the High Court downloaded by the respondent-accused produced on record by the learned Advocate for the accused,the High Court had recorded the conviction of the accused for the offenceunder Sections 448 and 354-A(1)(i) of the IPC read with Section 12 ofthe POCSO Act. There being a discrepancy in the said two copies ofthe impugned judgment of the High Court, the learned Advocate for therespondent-accused had filed an I.A. bringing to the notice of the Courtabout such discrepancy. The Court, therefore, had vide its order dated27.10.2021 directed the Registrar of the High Court to send the certified A

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49. It is very surprising to note that the Registry of High Court ofBBombay, Nagpur Bench, has certified the copy of the impugned judgmentby affixing the stamp on the back side of every page of the judgmentwhich is blank. The said copy of the judgment appears to have beendownloaded from the website and, therefore, does not bear even thesignature 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 alsoCnot written at the foot of the judgment as contemplated in Section 76 ofthe Indian Evidence Act. Such a practice, if followed by the NagpurBench of the Bombay High Court, may allow the miscreants to manipulateor commit mischief in the judicial orders which are used as the publicdocuments having great significance in the judicial proceedings. The DRegistrar General of the Bombay High Court, therefore, is directed tolook into the matter and ensure that proper procedure for preparing thecertified copies of the judgments/orders of the Court in accordance withlaw is followed.

50. All the five appeals stand disposed of accordingly.

51. It will be failure on our part if we do not extend gratitude ofEappreciation for the enormous assistance rendered by learned SeniorAdvocate Mr. Siddhartha Dave, learned Amicus Curiae, Mr. SiddharthLuthra, learned Senior Advocate, appearing on behalf of the accusedthrough Supreme Court Legal Services Committee, Ms. Geetha Luthra,learned Senior Advocate appearing for National Women CommissionFand all other advocates who have appeared in the matter.

The initiative taken by the learned Attorney General for India Mr.K.K. Venugopal in filing the appeal with all sense of expressing his concernin the cause also deserves to be appreciated.

ORDER

GS. RAVINDRA BHAT, J.

1. I begin this concurring opinion with a preface that I completelyand unreservedly agree with the findings and conclusions recorded inthe comprehensive judgment of Justice Bela Trivedi. I also hasten toadd that I deem this effort not as an attempt to speak for the sake ofHspeaking, and thereby adding little value to Justice Trivedi’s analysis, but

only essentially to point to a slightly different direction, which is the needto interpret the statute in the context of the circumstances that resultedin its birth.

2. The judgments under appeal remind one of a passage fromLewis Caroll’s Alice in Wonderland, where he describes what words(or expressions) mean and whether they have an intrinsic meaning at all:

“When I use a word,” Humpty Dumpty said in rather ascornful tone, “it means just what I choose it to mean—neithermore nor less.”

“The question is,” said Alice, “whether you can make wordsmean so many different things.”

“The question is,” said Humpty Dumpty, “which is to bemaster—that’s all.”

3. To place the matter in perspective, what is in issue is the trueinterpretation of the expression “with sexual intent touches the vagina,penis, anus or breast of the child” at someone’s behest. Such an act,under Section 7 of the Protection of Children from Sexual OffencesAct, 2012 (“POCSO” hereafter) is an offence of sexual assault, andpunishable under Section 8. According to the interpretation placed bythe High Court, for any act to be an offence, the touching of any of theparts mentioned by the statute (vagina, penis, anus or breast) must be ofthe organ, and there should be a “skin to skin” contact.

4. I do not see the need to recount the facts or the arguments,which have been fairly and accurately set out in Trivedi, J’s judgment.Instead, I proceed with the task of interpretation of provisions of POCSO,and the proper rule of interpretation which should be adopted in suchcases. Long ago, in Reserve Bank of India v. Peerless GeneralFinance and Investment Co. Ltd. & Ors.[1] this court observed the needto contextualise the provisions of any law which requires interpretation,even while focussing on its text:

“If a statute is looked at, in the context of its enactment, withthe glasses of the statute-maker, provided by such context, itsscheme, the sections, clauses, phrases and words may takecolour and appear different than when the statute is lookedat without the glasses provided by the context. With these 1 (1987) 1 SCC 424

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Aglasses we must look at the Act as a whole and discover whateach section, each clause, each phrase and each word ismeant and designed to say as to fit into the scheme of theentire Act. No part of a statute and no word of a statute canbe construed in isolation. Statutes have to be construed sothat every word has a place and everything is in its place.”B5. The question then is whether “touching” has an intrinsic meaning,as Alice said, or whether it means only something that judges say itmeans, no more, no less.

6. One time tested and well accepted mode of interpreting aCstatute, especially a new statute, is to apply the “mischief rule” – firstspoken of in Heydon’s case[2] which contains a four-point formula, actingas an aid in construing a new law or provision. These are firstly, whatwas the common law before the making of the Act; secondly what wasthe mischief and defect for which the common law did not provide;thirdly what remedy Parliament resolved and appointed to cure theDdisease plaguing the society; and lastly the true reason of the remedy.The judgment in Heydon’s case also emphasised that courts alwayshave to interpret the law so as to suppress the mischief, and advance theremedy, and to suppress subtle inventions and evasions for continuanceof the mischief, and pro privato commodo, and to add force and life toEthe cure and remedy, according to the true intent of the makers of theAct, pro bono publico. This rule was approved, and its purport explained,in Kanwar Singh v. Delhi Administration[3] thus:

“It is the duty of the court in construing a statute to giveeffect to the intention of the legislature. If, therefore, giving aFliteral meaning to a word used by the draftsman, particularlyin a penal statute, would defeat the object of the legislature,which is to suppress a mischief, the court can depart from thedictionary meaning or even the popular meaning of the wordand instead give it a meaning which will advance the remedyand suppress the mischief.”G7. The aim of such statutory construction was put, pithily andsimply in Swantraj & Ors. v. State of Maharashtra[4]:

2 76 ER 6373 1965 (1) SCR 7H4 (1975) 3 SCC 322

“Every legislation is a social document and judicialconstruction seeks to decipher the statutory mission, languagepermitting, taking the cue from the rule in Heydon’s(1) caseof suppressing the evil and advancing the remedy.”

8. This court recollects its decision in Eera v. State (NCT of Delhi)[5]where the mischief rule was commended and applied, specifically inrelation to POCSO.

9. To gather the mischief which Parliament wished to eliminate, itwould be necessary to briefly trace the history of the law, which existedbefore POCSO was enacted. The Indian Penal Code (“IPC” hereafter)criminalizes assault or use of criminal force which outrages a woman’smodesty (by Section 354). The expression “criminal force” is defined inSection 350 and “assault” is defined in Section 351. These require anelement of application of physical force, to women. The expression“modesty” was another limitation as older decisions show that such astate was associated with decorousness[6 ]of women. This added adimension of patriarchy and class.[7]One cannot be unmindful of thecircumstances in which these provisions were enacted by a colonialpower, at a time, when women’s agency itself was unacknowledged, orhad limited recognition. Further, women in India were traditionally - duringthe time of enactment of IPC, in the mid nineteenth century - subordinatedto the care of their fathers, or their husbands, or other male relatives.They had no share in immovable property; notions of gender equalitywere unheard of, or not permitted. Women had no right to vote. Quitenaturally, the dignity of women – or indeed their autonomy, was notprovided for.

10. The advent of the Constitution of India revolutionized- at leastin law, all that. Regardless of gender, race, caste, religion or region, or allof the acknowledged sectarian and discrimination enabling barriers, 5 2017 (15) SCC 133

6 Rupan Deol Bajaj v. K.P.S Gill (1995) 6 SCC 194

7 Section 354 (or any other provision of the IPC) does not offer a statutory definitionof the term ‘modesty’, and over time, was interpreted broadly, contemporaneouslywith the developing and acknowledged role of women in society, to overcome itsinherently colonial and patriarchal origins. Yet, there were hangovers, as noticed asrecently as in Kalias & Ors. v. State of Maharashtra (2011) 1 SCC 293 wherein theabhorrent argument that a tribal woman’s ‘modesty’ was distinct owing to the‘inferiority’ of tribal people who live in torn clothes or no proper clothes was rejectedfor being totally unacceptable in modern India.

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Aeveryone enjoyed equality of law, and equal protection of law (Article14). Further, the provision in Article 15 (1) proscribed discrimination bythe state (in all its forms) on various grounds, including gender. Article15 (3) enabled the state to enact special provisions for women andchildren.B11. The limitations in law in dealing with acts that undermined thedignity and autonomy of women and children, ranging from behaviourthat is now termed “stalking” to pornography, or physical contact, andassociated acts, which were not the subject matter of any penal law,were recognized and appropriate legislative measures adopted, in othercountries.[8] These have been alluded to in Trivedi, J’s judgment, in detail.CThese laws contain nuanced provisions criminalizing behaviour thatinvolve unwanted physical contact of different types and hues, have thepropensity to harass and discomfit women and minors (including minorsof either sex), or demean them.

12. In India, the Law Commission’s 146[th] report (1993), 156[th]Dreport (1997) and 172[nd] report (2000) dealt with some of these andassociated issues. The 172[nd] report recommended changes to thedefinition of rape, expanding its scope, and also incorporating the expandeddefinition of sexual assault. These, and India’s ratification of the UNConvention on the Rights of Children, 1992 (which required nation statesEto adopt suitable legislation to combat coercion of children in sexualactivity, exploitative use of children and children’s exploitation forpornography), formed the background and basis for enacting POCSO.The Statement of Objects and Reasons for POCSO, cites the UNConvention, and further states that:F“ …The data collected by the National Crime Records Bureaushows that there has been increase in cases of sexual offencesagainst children. This is corroborated by the “study on childabuse: India 2007” conducted by the Ministry of Women andChild Department. Moreover, sexual offences against childrenare not adequately addressed by the extent laws. A largeG8 Sections 2, 3, 6, 7 and 78 of the UK Sexual Offences Act, 2003; Part V: SexualOffences, Public Morals and Disorderly Conduct (Sections 151-153), Criminal Code,1985 of the Dominion of Canada, Section 5, 6, 7, 15 of the Criminal Law (SexualOffences and related matters) (Amendment) Act, 2007, enacted by the Republic ofSouth Africa and amendments to laws enacted by the New South Wales, Victoria andNew York Penal Laws by their legislatures.H

number of such offences are neither specifically provided fornor are they adequately penalized. The interests of the child,both as a victim as well as a witness, need to be protected.

It is felt that offences against children need to be definedexplicitly and countered through commensurate penalties asan effective deterrence. It is, therefore, proposed to enact aself-contained comprehensive legislation inter-alia to providefor protection of children from the sexual offences andpornography with due regard for safeguarding the interestand well-being of the child at every stage of the Judicialprocess, incorporating child friendly procedures for reporting,recording of evidence, investigation and trial of offences andprovision for establishment of Special Courts for speedy trialof such offences.”[9]

13. Parallelly, it would be useful to notice that the IPC was soughtto be amended; through the introduction of a Bill in 2012, which forsome reason, did not see the light of the day; instead, the amendmentswere made, through an Ordinance[10] which was later replaced by aParliamentary Act.[11] These amendments enhanced the punishment forcertain offences (including Section 354) and introduced new offencesengrafted into the IPC, such as sexual harassment (Section 354A) whichis an offence involving unwelcome sexual advances or physical contact,demand or request for sexual favours, forceful exhibition of pornographyto women or making sexually coloured remarks; assault or use of criminalforce to woman with intent to disrobe (Section 354B), or abets the doingof such act; voyeurism (Section 354C) which is defined as the act of aman watching or capturing the image of a woman engaged in privateactivities (e.g. undressing), when the woman presumes she is assuredof privacy and does not expect anyone to be watching; stalking (Section 9 The statement of objects and reasons was noticed by this court in Alakh AlokShrivastava v. Union of India (2018) 17 SCC 291 where the court observed that “The POCSO Act has been legislated keeping in view the fundamental conceptunder Art. 15 of the Constitution that empowers the state to make specialprovisions for children and also Article 39(f) which provides that the state shallin particular direct its policy towards securing that the children are givenopportunities and facilities to develop in a healthy manner and in conditions offreedom and dignity and that childhood and youth are protected againstexploitation and against moral and material abandonment.”

10 Criminal Law (Amendment) Ordinance, (No. 3) of 2013

11 Criminal Law (Amendment) Act, (Act No. 13) of 2013

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A354D) which means following a woman and making or attempting tomake contact (either physically or through electronic media) for personalinteraction, despite a clear disinterest being displayed by the woman.

14. With this backdrop, one has to analyse the provisions ofPOCSO. Its Chapters II and III outline the different kinds of sexualBoffences from which children need protection. Part A of Chapter IIaddresses penetrative sexual assault on a child under Section 3 of theAct. Part B deals with circumstances in which such penetrative sexualassault assumes an ‘aggravated’ nature, under Section 5 of the Act.Part C defines sexual assault under Section 7 of the Act. Part D dealswith aggravated sexual assault under Section 9 of the Act. Part ECoutlines sexual harassment under Section 11 of the Act. Chapter IIIdeals with using a child for pornographic purposes.

15. The punishment for these offences is directly proportionate tothe severity of the offence. Penetrative sexual assault (Section 3) ispunishable by imprisonment of not less than ten years which may extendDto imprisonment for life, in addition to payment of fine under Section 4;aggravated penetrative sexual assault (Section 5) carries a rigorousimprisonment term of twenty years which may extend to the natural lifeof the offender under Section 6. Sexual assault (Section 7) carriesimprisonment of not less than three years, and can be extended up toEfive years with fine under Section 8; aggravated sexual assault (Section9) is punished by imprisonment of not less than five years and up toseven years with fine under Section 10; and sexual harassment (Section11) is punished by a term which may extend up to three years with fineunder Section 12. Punishment for using a child for pornographic purposesinvolves an imprisonment term of not less than five years and fine for aFfirst-time offence, and up to seven years for a repeated offence.

16. The punishment is also inversely proportionate to the autonomyexercisable by the child, with offences against children below the age of12 years falling under the ‘aggravated’ nature, thus subject to greaterterms of imprisonment and fine. Sexual assault is also of an ‘aggravated’Gnature under Sections 5 and 9 of the Act when committed by a person ina position of authority or those exercising authority over children in theircare. These sections provide a long list of examples, including policeofficer, member of armed for security forces, public servants,management personnel, or personnel of a jail, remand home, protectionHhome, observation home, management or staff of a hospital, management

or staff of an educational institution or religious institution; relative of thechild through blood or adoption or marriage or guardianship or in fostercare or having a domestic relationship with a parent of the child or whois living in the same or shared household with the child; in the ownership,or management, or staff, of any institution providing services to the child;position of trust or authority of a child, etc.

17. Section 7 of POCSO, which is the provision involved, therefore,has to be viewed having regard to the mischief rule, the background andhistory leading up to the enactment of the legislation (including theamendments to IPC in 2013) and to its objects. It reads as follows:

“7. Sexual assault-

Whoever, with sexual intent touches the vagina, penis, anusor breast of the child or makes the child touch the vagina,penis, anus or breast of such person or any other person, ordoes any other act with sexual intent which involves physicalcontact without penetration is said to commit sexual assault.”

18. 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, orpreparation by one person, that causes another to apprehend that theformer would use criminal force upon the intended victim. The emphasisof Section 7 is to address the felt social need of outlawing behaviourdriven by sexual intent.

19. The structure of Section 7 can be conveniently parsed in thefollowing manner:

“Whoever,

i.with sexual intent touchesthe vagina, penis, anus orbreast of the child or; makes the child touch the vagina,penis, anus or breast of such person or any otherperson,

ii.or does any other act with sexual intentwhich involvesphysical contact without penetration is said to commit sexual assault.”

20. A close analysis of Section 7 reveals that it is broadly dividedinto two limbs. Sexual assault, under the first limb is defined as the A

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Atouching 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 ofthose 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). Inthe second limb, sexual assault is the doing of “any other actwithsexual intent which involves physical contact without penetration”.B21. The use of the expression “touch” appears to be common, tothe first and second parts, of the first limb. “Touch” says the CambridgeDictionary[12] is “to put your handor another partof your body lightlyontoCand off something or someone.”

22. Collins Dictionary[13], likewise, states that “Your sense of touch is your ability to tell what something islike when you feel it with your hands.”

23. “Contact” on the other hand, which is used in the second limb,Dhas a wider connotation; it encompasses - but is not always limited to –‘touch’. While it is not immediately apparent why the term ‘physicalcontact’ has been used in the second limb, its use in conjunction with“any other act” (controlled by the overarching expression “with sexualintent”), indicates that ‘physical contact’ means something which is ofEwider import than ‘touching’. Viewed so, physical contact withoutpenetration, 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 physicalFcontact with the victim; or in the given circumstances of the case, evenno contact by the offender (the expression “any other act” is sufficientlywide to connote, for instance, the victim being coerced to touch oneself).

24. Parliamentary intent and emphasis, however, is that theoffending behavior (whether the touch or other act involving physicalcontact), should be motivated with sexual intent. Parliament movedGbeyond the four sexual body parts, and covered acts of a general nature,which when done with sexual intent,are criminalized by the second limb 12 https://dictionary.cambridge.org/dictionary/english/touch accessed at 16:55 hrs on 15.11.2021.

13 https://www.collinsdictionary.com/dictionary/english/touch accessed at 16:57H hours on 15.11.2021.

of Section 7. The specific mention of the four body parts of the child inthe first limb, and the use of the controlling expression “sexual intent”mean that every touch of those four body parts is prima facie suspect.

25. The circumstances in which touch or physical contact occurswould be determinative of whether it is motivated by ‘sexual intent’.There could be a good explanation for such physical contact which includethe nature of the relationship between the child and the offender, thelength of the contact, its purposefulness; also, if there was a legitimatenon-sexual purpose for the contact. Also relevant is where it takes placeand the conduct of the offender before and after such contact. In thisregard, it would be useful to always keep in mind that “sexual intent” isnot defined, but fact-dependent – as the explanation to Section 11specifies.

26. The inference by the High Court that “touch” cannotnecessarily involve contact with a child’s sexual body parts (in one ofthese cases, the breast) through clothes, is based on a disingenuousargument. Unsurprisingly, that argument had its roots in other jurisdictions.In Regina v H[14 ]the UK Court of Appeal, whilst interpreting the words“touching includes (a) with any part of the body; (b) with anythingelse or (c) through anything, and in particular, includes touchingamounts to penetration”per Section 79 (8) of the UK Sexual OffencesAct, repelled an argument on that the individual accused of an act inrelation to a victim, that involved grabbing “her track-bottoms by thearea of the right pocket” was not “touching”. It was observed by thecourt, that “The opening words of section 79 (8) are “Touching includestouching” and in particular “through anything”. Subsection(8) is not a definition section. We have no doubt that it wasnot Parliament’s intention by the use of that language to makeit impossible to regard as a sexual assault touching whichtook place by touching what the victim was wearing at thattime.”

27. Likewise, in State of Iowa v Walter James Fippes[15] as wellas State of Iowa v Kris Kanon Pearson[16 ]the court had to considerwhether a “sex act” or “sexual activity” (criminalised by Section 709.1,14 2005 (1) WLR 200515 442 NW 2d 611 (Iowa App. 1989).16 514 NW 2d 452 (Iowa 1994).

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A709.3 and 709.17) meant only sexual contact between two or morepersons, i.e., through penetration, mouth and genitalia or by contactbetween genitalia of one person and that of another. In both the judgments,the argument that contact or touch through clothing did not amount to anoffence, was decisively rejected. The test indicated (per Pearson) wasthat prohibited contact occurs when: (i) specified body parts or substitutesBtouch and (ii) intervening material would not prevent participants, viewedobjectively, from perceiving that they had touched. Interestingly, in thesedecisions one comes across the argument that what is an offence is onethat involves direct or “skin to skin” touch or contact.

28. These decisions only serve to highlight at once the humaningenuity in their making in like situations, as well as the limit of suchCcreativity- given that it is repetitive. Therefore, as noted earlier,unsurprisingly, an argument that direct contact (opposed to an indirectcontact which can be perceived by the victim) found favour with HighCourt. In my opinion, such an interpretation not merely limits the operationof the law, but tends to subvert its intention. It has the effect ofD“inventions and evasions” meant to continue the mischief, whichParliament wished to avoid.

29. The fallacy, therefore, in the High Court’s reasoning is that itassumes that indirect touch is not covered by Section 7- or in otherwords is no “touch” at all. That provision covers and is meant to coverboth direct and indirect touch. In plain English, to touch is to engage inEone of the most basic of human sensory perceptions. The receptors onthe surface of the human body are acutely sensitive to the subtleties ofa whole range of tactile experiences. The use of a spoon, for instance,to consume food - without touching it with the hand - in no way diminishesthe 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,Ftheir sense of touch is keen enough to feel it. Therefore, the reasoning inthe High Court’s judgment quite insensitively trivializes - indeed legitimizes- an entire range of unacceptable behaviour which undermines a child’sdignity and autonomy, through unwanted intrusions. The High Court,therefore clearly erred in acting on such interpretation, and basing itsconviction of and awarding sentence to the respondents; as it did theyGwere guilty of sexual assault. In the case of Satish, the conviction is tobe under Section 8. In the case of Libnus, the appropriate conviction isof aggravated sexual assault, under Section 10.

30. During the hearing, a few decisions of High Courts were cited.In Dulal Dhar v. State of Tripura[17]the complained act was of grabbingH17 2015 SCC Online Trip 188

the victim, forcibly kissing her and trying to undress her. The judgmentnoted that touching of the named parts was not the only set of acts thatwere criminalized, and remarked that “the legislature in its wisdomhas used very wide language which states that ‘does any other actwith sexual intent which involves physical contact’….pulling thegirl’s uniform involves physical contact with sexual intent.”

31. Similarly, the Tripura High Court decision in Tushar Singhav. State of Tripura[18] and judgments of Delhi High Court in Jitender v.State[19] and Rakesh v. State (GNCTD)[20] consistently held that touchingthe breast of a child victim constituted sexual assault under Section 7,punishable under Section 8. In all these judgments, the courts uniformlyhighlighted the ‘sexual intent’ of the offender. I am of the opinion thatthose judgments (of the Tripura and Delhi High Court) have correctlyinterpreted the law, having regard to the overall Parliamentary intent,which led to the enactment of POCSO.

32. Another reason why the High Court’s reasoning in theimpugned judgment is unacceptable is that the term ‘contact’ iscomprehended in the expression ‘force’ under Section 349 of IPC insuch manner, that the causing to any substance motion, change of motion,etc. which “brings that substance into contact with any part of thatother’s body, or with anything which that other is wearing orcarrying, or with anything so situated that such contact affects thatother’s sense of feeling”.[21] Section 2(2) of POCSO enacts that “Thewords and expressions used herein and not defined but defined inthe Indian Penal Code (45 of 1860), the Code of Criminal Procedure, 18 Crl. (A) J/2/2020, decided on 04.05.21

19 Crl. (A) 564/2019 decided on 19.03.20

20 2018 SCCOnline Del 1179

21 349. Force.—A person is said to use force to another if he causes motion, change ofmotion, or cessation of motion to that other, or if he causes to any substance suchmotion, or change of mo-tion, or cessation of motion as brings that substance into con-tact with any part of that other’s body, or with anything which that other is wearingor carrying, or with anything so situated that such contact affects that other’s sense offeeling: Provided that the person causing the motion, or change of motion, or cessationof motion, causes that motion, change of motion, or cessation of motion in one of thethree ways hereinafter de-scribed.

First— By his own bodily power.

Secondly—By disposing any substance in such a manner that the motion or change orcessation of motion takes place without any further act on his part, or on the part ofany other person.

Thirdly— By inducing any animal to move, to change its motion, or to cease to move.

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A1974 (2 of 1974), [the Juvenile Justice (Care and Protection ofChildren) Act, 2015 (2 of 2016)] and the Information TechnologyAct, 2000 (21 of 2000) shall have the meanings respectively assignedto them in the said Codes or the Acts”.The idea of ‘contact’ by aperson with another through their clothing would hence, imply a physicalcontact. This is because of a combined operation of Section 2(2) ofBPOCSO and Section 349 of IPC. Crucially, neither Section 7 nor anyother provision of POCSO even remotely suggests that ‘direct’ physicalcontact unimpeded by clothing is essential for an offence to be committed.

33. In the end, I cannot resist quoting Benjamin Cardozo that“the great tides and currents which engulf the rest of men do notCturn aside in their course and pass the judges by.” It is, therefore, nopart of any judge’s duty to strain the plain words of a statute, beyondrecognition and to the point of its destruction, thereby denying the cry ofthe times that children desperately need the assurance of a law designedto protect their autonomy and dignity, as POCSO does.

D34. I concur with the reasons and conclusions recorded by JusticeBela Trivedi, and with the additional observations indicated above, agreethat the appeals of the Attorney General and the National Commissionfor Women, should be allowed; the appeals of the accused should, likewise,be dismissed in the two appeals filed against the judgment of the BombayEHigh Court, Nagpur Bench. Accordingly, I agree with the modificationof conviction and the sentences imposed on the accused, Satish andLibnus. The appeals are disposed of in the above terms.

35. At the end, I would record my gratitude and appreciation forthe invaluable assistance provided by Mr. K.K. Venugopal, learnedFAttorney General for India, Mr. Siddharth Luthra, learned SeniorAdvocate appearing on behalf of the accused through Supreme CourtLegal Services Committee, and the amicus curiae appointed by the CourtMr. Siddhartha Dave, learned Senior Advocate as also all other learnedcounsel who have assisted the Court in these proceedings.

GNidhi Jain

Appeals disposed of.

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