SKIN TO SKIN JUDGEMENT- SEXUAL INTENT- POCSO ACT 2012.
Friends, the great sages of our Sanatan Dharma (who were basically scientists AND psychologists) have clearly and specifically told us, while making us aware of the irrefutable facts and thereby cautioning that “there are five types of disorders inside the body of a human being which we call “Sex or Lust”. Anger, Greed, Attachment and Ego”. Similarly the soul has seven qualities which we recognize as Purity, Peace, Strength, Love, Happiness, Wisdom and Seriousness.
Now friends, on one side there are five vices (disorders) and on the other side there are seven qualities, it depends on the human being, how he coordinates the seven qualities of the soul and the five vices of the body because his whole life depends on this coordination. By the way, in the modern era, human beings are making maximum use of these five vices and in the same quantity the vibrations of lust, anger, greed, attachment and ego are increasing in our universe.
In addition to these five disorders of the body @ mind, and the seven qualities of the soul, there are twenty-five natures in this body which are basically based on the five elements, which are as follows:-
The Nature of water element:- Blood, Urine, Semen, Service and Love.
The nature of the element of fire: – Laziness, Revolution, Appetizers, Craving and Sleep.
The nature of the air element:-Contraction, Movement, Folding, Running and Spreading.
The Nature of the earth element:- Bones, Flesh, Pulse, Skin and Hair.
The Nature of the sky element:- Fear, Attachment, Lust, Anger and Grief.
In our religious texts, great importance has been given to the renunciation of these five vices i.e. “Kama, Krodha, Greed, Moha and Ego” – to attain Dharma, Artha, Kama and Moksha. And we get a direct example in the Sundarkand of “Shri Ramcharit Manas”, composed by Goswami Tulsidas, which is as follows:-
काम क्रोध मद लोभ सब नाथ नरक के पंथ।
सब परिहरि रघुबीरहि भजहु भजहिं जेहि संत॥38॥
Meaning:- Vibhishana, while explaining to his brother Mahapandit Shri Ravana, requests that O Nath! Lust, Anger, Attachment, Greed and Ego- all these are the way to hell, leave them all and worship Shri Ramchandraji, whom saints (Satpurush) worship.
Whereas it is also true that “these five vices are not completely vices in themselves, but they are also human qualities. Friends, if we shall consider meticulously, then we will find that these five vices (gunas) i.e. lust, anger, greed, attachment and ego are very necessary not only for the development of the human race, but also for the development of the entire living world. These five human qualities come under the category of disorders only, when they violate their respective limits or rather when they are in excess, then only these disorders are formed.
We can understand this with the help of an example as mentioned hereiunder:-
Ego or vanity:- When it remains in its initial state, it is called self-respect. Self-respect is a natural quality of any human being (female or male) which is associated with respect for his/her character. As long as the self-respect within a particular person remains in his dignity, he respects himself as well as others, but when this self-respect violates his dignity and takes the form of ego, then the person considers himself only superior and despises others and insults them and then it (i.e. Ego) manifests as a disorder.
Here we will only discuss about Sex or Lust. Friends, in the absence of sex-feeling, development of any species is possible, probably not, because it is sex-feeling that creates attraction of love between opposite sex i.e. female and male by bringing them closer to each other for sexual intercourse. Inspires and after sex both reach the climax of bliss and the seed of a new life sprouts in the womb of the female. In the absence of Kama or Shakti, it is not possible to get rid of paternal debt. As long as man keeps this sex feeling under his control, he experiences the climax of its happiness and joy and remains happy.
But when this feeling of sex takes the person under its’ control, then it takes the form of lust and the person suffering from this disorder is compelled to concentrate on one part of his body and that is the main cause behind the arise of many crimes related to adultery, rape and lust in the society. The lustful person seems to have lust in every subject and he tries to quench the thirst of his lust from new-born girls to senior women of 80-90 years. This tendency is found in more quantity in men than in women.
Enactment of POCSO ACT, 2012:-
An Act was enacted by the government for the protection of innocent minors and new-born girls from sexually active persons, which we know as ” The Protection of Children from Sexual Harassment Act 2012″. It is abbreviated as “POCSO (POCSO) Act-2012.The Ministry of Women and Child Development had laid its foundation to prevent heinous crimes like sexual harassment, sexual abuse and pornography against children.
Friends, just a few months ago, a Judgement was passed by the Hon’ble High Court of Judicature at Bombay under the POCSO ACT, 2012, which remained in the headlines. The factual matrix of the case can be underlined herein as under:- The case of the prosecution before the Special Court as emerging from the record was that the informant happened to be the mother of the victim aged about 12 years. The accused-Satish was residing 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 to obtain 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 Divya Uikey who was staying nearby, told her that the neighbouring person (the accused) had taken her daughter along with him to his house. The informant, therefore, went to the house of the accused. The accused at that time came down from the first floor of his house. The informant having made inquiry about her daughter, the accused told her that she was not there in his house. The informant, however, barged into the house of the accused to search her daughter as she heard the shouts coming from a room situated on the first floor. She went to the first floor and found that the door of the room was bolted from outside. She opened the 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 accused had asked her to come with him and told her that he would give her a guava. He took her to his house. He then pressed her breast and tried to remove her salwar. At that time, the victim tried to shout but the accused pressed her mouth. The accused thereafter left the room and bolted the door from outside. The informant, on having learnt such facts, went to the 4 Police Station along with her daughter to lodge the complaint. The said complaint was registered as Crime No. 405/2016 at Police Station Gittikhadan, Nagpur.
Interpretation and Judgement of the Hon’ble High Court at Bombay:-
While passing this decision, the High Court was pleased to interpret the provisions given under Section 7 of the POCSO ACT 2012 by observing that (PARA 16) “Now the question for consideration of this court is, whether the ‘pressing of breast’ and ‘attempt to remove salwar’ would fall within the definition of ‘sexual assault’ as defined under Section 7 and punishable under Section 8 of the POCSO Act. For better appreciation of evidence, it would be necessary to look into the definition of ‘sexual assault’, which is reproduced below:-
Section 7. Sexual assault – Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration, is said to commit sexual assault. As per this definition, the offence involves the following necessary ingredients : (i) Act must have been committed with sexual intent; (ii) Act must involve touching the vagina, penis, anus, or breast of the child or making the child touch the vagina, penis, anus or breast of such person or any other person or doing any other act with sexual intent which involves physical contact without penetration.
The Hon’ble court was further pleased to observe that (PARA No. 18) “in the opinion of this Court, stricter proof and serious allegations are required. The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’. It would certainly fall within the definition of the offence under Section 354 (i.e. Assault or criminal force to woman with intent to outrage her modesty) of the Indian Penal Code.
And finally the Hon’ble Court was pleased to deliver the Judgement by stating that “Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration. In view of the above discussion, this Court holds that the appellant is acquitted under Section 8 of the POCSO Act and convicted under minor offence u/s 354 of IPC (PARA NOS 26 and 27).
EFFECT OF THE SAID OBSERVATION AND INTERPRETATION:-
The whole judicial system was shocked and surprised to go through the contents, averments and the observations of the Hon’ble High Court as the said Judgment was completely based on some technical issues raised by the LD. Justice in respect of “Sexual Intent”, “Touch” and “Sexual Assault”. The said Technical observation of the Ld. Justice was nothing but an open invitation for the Lusty People to wear the gloves and quench their lusty thirst by touching the whole body parts of a minor girl thereby make physical contact without penetration and inasmuch as in that case touching the sexual or non-sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act. The said physical contact i.e. Skin to skin judgment was destroying the main object and holy intention of the POCSO ACT, 2012 and hence not only the State of Maharashtra but the National Commission of Woman has also placed the Appeal before the Hon’ble Supreme Court of India by challenging the authenticity, legality and validity of the said Judgement.
Before Dealing with the Judgement of the Hon’ble Supreme court, we shall have to understand the object of the POCSO ACT, 2012:- The POCSO ACT, 2012 is a widespread law to provide protection of children from the offences of sexual assault, pornography and sexual harassment. The Act defines various forms of sexual abuse/assualt which includes penetrative as well as non-penetrative assault. Since the sexual offences against children were not adequately addressed by the existing laws and a large number of such offences were neither specifically provided for nor were they adequately penalized, the POCSO Act, 2012 was enacted to protect the children from the offences of sexual assault, sexual harassment and pornography and to provide for establishment of special Courts for trial of such offences and for matters connected therewith and incidental thereto.
While enacting the said Act, Article 15 of the Constitution which empowers the State to make special provisions for children, and the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, as acceded to by the Government of India, prescribing a set of standards to be followed by all the State parties in securing the best interest of the child, were also kept in view.
The POCSO Bill intended to enforce the rights of all children to safety, security and protection from sexual abuse and exploitation, and also intended to define explicitly the offences against children countered through commensurate penalties as an effective deterrence. Some Important Factors of the POCSO Act are as follows:- (1) The Act applies to the whole of India and provides protection against sexual offenses to children below the age of 18 years; (2) If the accused is a juvenile, he shall be tried under the Juvenile Courts Act, 2000 (Care and Protection of Children); (3) If the aggrieved child is handicapped or mentally or physically ill, the special court should take the help of translator, interpreter or special teacher for recording his testimony or for any other purpose; (4) If the offender has committed such an offense which is an offense under the law other than the juvenile delinquency law, then the punishment to the offender will be under that law which is the strictest; (5)In this, the onus of proving himself innocent lies on the accused. There is also a provision of punishment for making false allegations, giving false information and maligning the image of someone; (6)There is also a provision of strict punishment for those who do child trafficking for sexual purposes;(7)This Act entrusts the responsibility of child guardian to the police. In this, the police are given the responsibility of making immediate arrangements for the care and protection of the child. Such as getting emergency medical treatment for the child and keeping the child in a shelter home etc.; (8)It is the responsibility of the police to bring the matter under the supervision of the Child Welfare Committee (CWC) within 24 hours so that the CWC can take necessary steps for the safety and protection of the child;(9) Provisions have also been made in this Act for medical examination of the child, which shall be such as to cause the least amount of pain to the child. The medical examination should be done in the presence of the child’s parents or any other person in whom the child has confidence, and the child should be medically examined by a female doctor; (10)The Special Court may determine the amount of compensation to be paid to the child so as to make arrangements for medical treatment and rehabilitation of the child; (11) The Act provides that a case of sexual abuse of a child must be disposed of within one year from the date of occurrence of the incident ;(12) “ the required Changes have also been made in the ‘PACSO Act-2012’ to stop the increasing violence against girls in the country, under which the culprits of raping a girl child up to 12 years of age will get death penalty” and not only this According to the Indian Penal Code, 1860, the age of consensual sex for girls in the country has been increased from 16 years to 18 years. it means that-(a) If any person (including a child) commits sexual act with any child with or without his consent, then he has to be punished according to POCSO Act and (b) If a husband or wife makes sexual act with a spouse who is less than 18 years of age, then it comes under the category of offense and can be prosecuted and not only this ‘ the required Changes have been made, under which the culprits of raping a girl up to 12 years of age will now get the death penalty.
So it is crystal clear that the aforementioned reforms have been destroyed only on the basis of a technical observation of the Hon’ble High Court i.e. Physical contact i.e. Skin to Skin Contact.
ERROR IN LAW COMMITTED BY THE HON”BLE BOMBAY HIGH COURT:- The Hon’ble High court failed to appreciate that:-
1:- The Age of the Victim is 12 years and hence she was minor at the time of crime;
2:- All the alleged acts of the accused i.e. taking the victim(12 years old) to his house, trying to remove her salwar, pressing her breast and pressing her mouth when she started shouting, were the acts amounting to “sexual assault” within the meaning of Section 7 punishable with Section 8 of the POCSO Act, 2012 and aslo the said facts are covered under the maxim of Res gestae i.e. Relevancy of facts forming part of same transaction.—Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
3:- Since the sexual offences against women were not adequately addressed by the existing laws, the POCSO Act was specifically enacted to protect the children from the offences of sexual assault, sexual harassment and pornography.
4:- The legislature has interchangeably used the words ‘touch’ and ‘physical contact’ in Section 7 “as the word “Touch” as defined in the 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” and The word “physical“ as defined in the Advanced Law Lexicon, 3rd Edition, means “of or relating to body ” and the word “contact” means “the state or condition of touching; touch; the act of touching” and therefore restricting the meaning of the word ‘physical contact’ to ‘skin to skin contact’ would be a narrow interpretation of the said provision, defeating the very object of the Act.
5:- It is trite saying that while interpreting a statute, the courts should strive to ascertain the intention of the Legislature enacting it, and it is the duty of the Courts to accept an interpretation or construction which promotes the object of the legislation and prevents its possible abuse.
6:- The bare reading of Section 7 of the Act, which pertains to the “sexual assault”, it appears that it is in two parts. The first part of the Section mentions about the act of touching the specific sexual parts of the body with sexual intent. The second part mentions about “any other act” done with sexual intent which involves physical contact without penetration.
7:- The act of touching the sexual part of body or any other act involving physical contact, if done with “sexual intent” would amount to “sexual assault” within the meaning of Section 7 of the POCSO Act.
 THE SAID TECHINICAL DECISION OF THE HON’BLE BOMBAY HIGH COURT IS SET ASIDE BY THE HON’BLE SUPREME COURT BY OBSERVING THAT:- (PARA NOS. 40 AND 41) The High Court while specifically accepting the consistent versions of the victim and her mother i.e. informant about the accused having taken the victim to his house, having pressed the breast of the victim, having attempted to remove her salwar and pressing her mouth, had committed gross error in holding that the act of pressing of breast of the child aged 12 years in absence of any specific details as to whether the top was removed or whether he inserted his hands inside the top and pressed her breast, would not fall in the definition of sexual assault, and would fall within the definition of offence under Section 354 of the IPC. The High Court further erred in holding that there was no offence since there was no direct physical contact i.e. “skin to skin” with sexual intent. The interpretation of Section 7 at the instance of the High Court on the premise of the principle of “ejusdem generis” is also thoroughly misconceived. It may be noted that the principle of “ejusdem generis” should be applied only as an aid to the construction of the statute. It should not be applied where it would defeat the very legislative intent. As per the settled legal position, if the specific words used in the section exhaust a class, it has to be construed that the legislative intent was to use the general word beyond the class denoted by the specific words. So far as Section 7 of the POCSO Act is concerned, the first part thereof exhausts a class of act of sexual assault using specific words, and the other part uses the general act beyond the class denoted by the specific words. In other words, whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, would be committing an offence of “sexual assault”. Similarly, whoever does any other act with sexual intent which involves physical contact without penetration, would also be committing the offence of “sexual assault” under Section 7 of the POCSO Act. In view of the discussion made earlier, the prosecution was not required to prove a “skin to skin” contact for the purpose of proving the charge of sexual assault under Section 7 of the Act.
So it is crystal clear that The hon’ble Supreme court has observed that the most important ingredient in convicting sexual offenders under sections 7 and 8 of the POCSO Act, 2012 is “sexual intent and not skin-to-skin Contact” And accordingly the technical decision of the Hon’ble High Court of Judicature at Bombay “i.e. “groping a minor’s breast without ‘skin to skin contact’ can’t be termed as sexual assault under Section 7 of POCSO Act, 2012 ” has been finally set aside.
CONCLUSION:- There are two parts of the conclusion:-
1:- It is concerned with right interpretation of the Law and Provisions. the law would have to be interpreted having regard to the subject matter of the offence and to the object 26 of the law it seeks to achieve. The purpose of the law cannot be to allow the offender to sneak out of the meshes of law. a statute is an edict of the legislature. The elementary principle of interpreting or construing a statute is to gather the mens or sententia legis, the true intention of the Legislature. The Interpretation of a law or any provision must not defeat the very object of the enactment of the same.
2:- It is concerned with the reformation of the society as in order to prevent the concerned person from committing such heinous offence against child girl or woman, we shall have to establish the real environment by educating the people, children and parents regarding the same.
We must remember very well that unless the lust of ‘Kama’ is conquered, no great work can be accomplished, be it mundane, religious, or divine. Arjuna asks Lord Krishna that Maharaja, there are many great sufferings in committing a sin – even knowing this, by what motivation does a man indulge in sinful action. He replied-
काम एष क्रोध एष रजोगुणसमुद्भवः।
महाशनो महापाप्मा विद्धयेनमिह वैरिणम्॥
That is, O Arjuna! The lust and anger, which are born out of the mode of passion, are fear-mongering, and from these there is a tendency in every sin. These are the biggest enemies of all. As far as possible, take measures to destroy them. Just as a mirror is tainted by the smoke of fire and a new-born child is covered by the filthy substances of the womb, so is the true self-knowledge covered by the blackness of sex. Many ways are told to conquer this enemy, but people forget that it is not possible to uproot this tendency from the root. Many mahatmas tried and they failed. This lust cannot be destroyed, yes, there is another way to get rid of it. That is, to transform it. The meaning of transformation of lust is clear. Its meaning is to stop the flow of the sex energy from the unhealthy path of physical contact and give it some other way to escape. The path of water of rivers, springs, streams is blocked, then by flowing it to a new area, amazing electricity is generated. Similarly, by diverting the intense flow of lust from the narrow path of petty worldly pleasures, he opens it to such a field, by which many difficult tasks can be accomplished by his amazing power.
Thanks with Regards.
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH CRIMINAL APPEAL NO. 161 OF 2020 Satish s/o Bandu Ragde v/s. The State of Maharashtra
 Section 6 of the Indian Evidence Act 1872
 CRIMINAL APPEAL NO.1412 OF 2021 (@ SPECIAL LEAVE PETITION (CRL) NO. 1159 OF 2021) THE STATE OF MAHARASHTRA V/S SATISH.
 Balaram Kumawat Vs. Union of India (2003) 7 SCC 628,
 J.P. Bansal vs. State of Rajasthan & Anr. Reported in AIR (2003) SC 1405