2021 Supreme(SC) 701

SUPREME COURT OF INDIA
(From the High Court of Judicature at Bombay at Nagpur)
UDAY UMESH LALIT, BELA M. TRIVEDI, S. RAVINDRA BHAT, JJ.
ATTORNEY GENERAL FOR INDIA - APPELLANT
VERSUS
SATISH AND ANOTHER - RESPONDENT
CRIMINAL APPEAL NO.1410 OF 2021 (@ SPECIAL LEAVE PETITION (CRL) NO. 925 OF 2021)
WITH
NATIONAL COMMISSION FOR WOMEN - APPELLANT
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER - RESPONDENT
CRIMINAL APPEAL NO.1411 OF 2021 (@ SPECIAL LEAVE PETITION (CRL) NO. 1339 OF 2021)
WITH
THE STATE OF MAHARASHTRA - APPELLANT
VERSUS
SATISH - RESPONDENT
CRIMINAL APPEAL NO.1412 OF 2021 (@ SPECIAL LEAVE PETITION (CRL) NO. 1159 OF 2021)
WITH
THE STATE OF MAHARASHTRA - APPELLANT
VERSUS
LIBNUS - RESPONDENT
CRIMINAL APPEAL NO.1413 OF 2021 (@ SPECIAL LEAVE PETITION (CRL) NO. 5071 OF 2021)
WITH
SATISH - APPELLANT
VERSUS
THE STATE OF MAHARASHTRA - RESPONDENT
CRIMINAL APPEAL NO. 1414 OF 2021 (@ SPECIAL LEAVE PETITION (CRL) NO. 7472 OF 2021)
Decided On : 18-11-2021

IMPORTANT POINTS
(1) Sexual assault – Act of touching any sexual part of body of a child with sexual intent or any other act involving physical contact with sexual intent, could not be trivialized or held insignificant or peripheral so as to exclude such act from purview of “sexual assault” under Section 7 of POCSO.
(2) Most important ingredient for constituting offence of sexual assault under Section 7 of Act is “sexual intent” and not “skin to skin” contact with child.
(3) Where intention of Legislature cannot be given effect to, courts would accept bolder construction for the purpose of bringing about an effective result.

Headnote:

Per Bela M. Trivedi, J.

(A) Protection of Children from Sexual Offences Act, 2012 – Section 7 – Sexual assault – Act of touching sexual part of body or any other act involving physical contact, if done with “sexual intent” would amount to “sexual assault” within meaning of Section 7 of POCSO Act – Restricting interpretation of words “touch” or “physical contact” to “skin to skin contact” would not only be a narrow and pedantic interpretation of provision contained in Section 7 of POCSO Act, but it would lead to absurd interpretation of said provision – “Skin to skin contact” for constituting an offence of “sexual assault” could not have been intended or contemplated by Legislature – Very object of enacting POCSO Act is to protect children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating very object of Act, inasmuch as in that case touching sexual or non-sexual parts of body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of POCSO Act – Most important ingredient for constituting offence of sexual assault under Section 7 of Act is “sexual intent” and not “skin to skin” contact with child. (Paras 32 and 33)

(B) Protection of Children from Sexual Offences Act, 2012 – Sections 7, 11, 29 and 30 – Sexual assault – Act of touching any sexual part of body of a child with sexual intent or any other act involving physical contact with sexual intent, could not be trivialized or held insignificant or peripheral so as to exclude such act from purview of “sexual assault” under Section 7 – Law would have to be interpreted having regard to subject matter of offence and to object of law it seeks to achieve – Purpose of law cannot be to allow offender to sneak out of meshes of law – Having regard to seriousness of offences under POCSO Act, Legislature has incorporated certain statutory presumptions – Though as per Explanation to Section 11, “sexual intent” would be a question of fact, Special Court, when it believes existence of a fact beyond reasonable doubt, can raise presumption under Section 30 as regards existence of “culpable mental state” on part of accused – Court cannot be oblivious to fact that impact of traumatic sexual assault committed on children of tender age could endure during their whole life, and may also have an adverse effect on their mental state – Suffering of victims in certain cases may be immeasurable – Considering objects of POCSO Act, its provisions, more particularly pertaining to sexual assault, sexual harassment etc. have to be construed vis-à-vis other provisions, so as to make objects of Act more meaningful and effective. (Paras 35, 36 and 37)

(C) Protection of Children from Sexual Offences Act, 2012 – Section 8 – Indian Penal Code, 1860 – Sections 342, 354 and 363-A – Kidnapping, wrongful restraint and attempt to outrage modesty of a girl – Conviction and sentence – High Court while specifically accepting consistent versions of victim and her mother i.e. informant about accused having taken victim to his house, having pressed breast of victim, having attempted to remove her Salwar and pressing her mouth, had committed gross error in holding that act of pressing of breast of child aged 12 years in absence of any specific details as to whether the top was removed or whether he inserted his hands inside top and pressed her breast, would not fall in definition of sexual assault, and would fall within definition of offence under Section 354 of IPC – High Court further erred in holding that there was no offence since there was no direct physical contact i.e. “skin to skin” with sexual intent – Prosecution was not required to prove a “skin to skin” contact for the purpose of proving charge of sexual assault under Section 7 of Act – Surrounding circumstances like accused having taken victim to his house, accused having lied to mother of victim that victim was not in his house, mother having found her daughter in room on first floor of house of accused and victim having narrated incident to her mother, were proved by prosecution – Such basic facts having been proved by prosecution, Court was entitled to raise statutory presumption about culpable mental state of accused – Prosecution had duly proved not only sexual intent on part of accused but had also proved alleged acts that he had pressed breast of victim, attempted to remove her Salwar and had also exercised force by pressing her mouth – All these acts were acts of “sexual assault” as contemplated under Section 7, punishable under Section 8 of POCSO Act – There was no reason for High Court not to treat such acts as acts of “sexual assault” within meaning of Section 7 of POCSO Act – Impugned judgments and orders passed by High Court of Judicature at Bombay, Nagpur Bench, quashed and set aside and judgments and orders passed by Extra Joint Additional Sessions Judge, Nagpur restored. (Paras 40, 41, 42, 43 and 44)

(D) Interpretation of Statute – Rule of Legislative Intent – While interpreting a statute, courts should strive to ascertain intention of Legislature enacting it – It is duty of Courts to accept an interpretation or construction which promotes object of legislation and prevents its possible abuse – A statute is an edict of the legislature – Elementary principle of interpreting or construing a statute is to gather mens or sententia legis, true intention of Legislature – As per rule of construction contained in maxim “Ut Res Magis Valeat Quam Pereat ”, construction of a rule should give effect to the rule rather than destroying it – Any narrow and pedantic interpretation of provision which would defeat object of provision, cannot be accepted – Where intention of Legislature cannot be given effect to, courts would accept bolder construction for the purpose of bringing about an effective result – Clauses of a statute should be construed with reference to context vis-à-vis other provisions so as to make a consistent enactment of whole Statute relating to subject matter. (Paras 28, 33 and 37)

(E) Interpretation of Statute – Principle of “ejusdem generis” – Principle of “ejusdem generis” should be applied only as an aid to construction of statute – It should not be applied where it would defeat very legislative intent – As per settled legal position, if specific words used in section exhaust a class, it has to be construed that legislative intent was to use general word beyond class denoted by specific words. (Para 41)

(F) Words and Phrases – Touch – Word “Touch” as defined in Oxford Advanced Learner’s Dictionary means “the sense that enables you to be aware of things and what are like when you put your hands and fingers on them” – Word “physical“ as defined in Advanced Law Lexicon, 3rd Edition, means “of or relating to body………..” and word “contact” means “the state or condition of touching; touch; the act of touching……”. (Para 32)

Per S. Ravindra Bhat, J. (Assenting View)

Protection of Children from Sexual Offences Act, 2012 – Section 7 – Sexual assault – Section 7 of POCSO has to be viewed having regard to mischief rule, background and history leading up to enactment of legislation (including amendments to IPC in 2013) and to its objects – Emphasis of Section 7 is to address felt social need of outlawing behaviour driven by sexual intent – Circumstances in which touch or physical contact occurs would be determinative of whether it is motivated by ‘sexual intent’ – There could be a good explanation for such physical contact which include nature of relationship between child and offender, length of contact, its purposefulness; also, if there was a legitimate non-sexual purpose for contact – Also relevant is where it takes place and conduct of offender before and after such contact. (Paras 17, 18 and 25)

Facts of the case:

The four Appeals filed by the appellants - Attorney General for India, by National Commission for Women, by State of Maharashtra and by the appellant-accused respectively, arising out of the Judgment and Order dated 19.01.2021 passed in Criminal Appeal No. 161 of 2020 by the High Court of Judicature at Bombay, Nagpur Bench, and the Appeal filed by the Appellant-State of Maharashtra, arising out of the Judgment and Order dated 15.01.2021 passed in the Criminal Appeal No. 445 of 2020 by same Nagpur Bench, encompass similar contextual legal issues, and therefore, permit this analogous adjudication. Trial Court convicted and sentenced the accused for offences under Sections 342, 354 and 363 of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012. Being aggrieved by the same, accused had preferred an appeal being Criminal Appeal No. 161 of 2020 in the High Court of Judicature at Bombay, Nagpur Bench. By the Judgment and Order dated 19th January, 2021, the High Court disposed of the said appeal by acquitting the accused for the offence under Section 8 of POCSO Act, and convicting him for the offence under Sections 342 and 354 of the IPC. The accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 500/- in default thereof to suffer R.I. for one month for the offence under Section 354 and to undergo imprisonment for a period of six months and to pay fine of Rs. 500/- , in default thereof to suffer R.I. for one month for the offence under Section 342 of IPC.

Findings of Court:

The inference by the High Court that “touch” cannot necessarily involve contact with a child’s sexual body parts (in one of these cases, the breast) through clothes, is based on a disingenuous argument. That argument had its roots in other jurisdictions.

Result : Appeals of Attorney General and National Commission for Women, Allowed and appeals of accused dismissed.