The Supreme Court on Thursday set aside the controversial Bombay High Court verdict acquitting a man of POCSO charges in the skin-to-skin groping case. The three-judge bench led by Justice UU Lalit restored the trial court's conviction and sentenced the man to three years in jail.
The Supreme Court said the verdict of the Nagpur bench of the Bombay High Court was not only "narrow and pedantic" but also an "absurd" interpretation of the law.The most important ingredient (in POCSO) is the sexual intent and not the skin-to-skin contact of the child... When the legislature has expressed clear intention, the courts cannot create ambiguity in the provision, the Supreme Court said restoring the trial court's verdict convicting the man under POCSO charges.
The top court clarified that any "touch" or "physical contact" done with sexual intent towards a minor would be considered as sexual assault under POCSO. The most important ingredient is the sexual intent and not the skin-to-skin contact of the child, the court clarified.
Sexual intent is a question of fact which is to be determined from the circumstances. Restricting the interpretation of touch was absurd and would destroy the intent of the act, the top court held.
"If such an interpretation is adopted, a person who uses gloves or any other like material while physical groping will not get conviction for the offence. That will be an absurd situation," Justice Bela Trivedi said reading the operative part of the verdict.
"The Construction of rule should give effect to rule rather than destroying it. The intention of legislature cannot be given effect to unless wider interpretation is given do. The purpose of the law cannot be to allow the offender to escape the meshes of the law," the three-judge bench said.
On January 19, Justice Pushpa Ganediwala at the Nagpur bench of the Bombay High Court acquitted an offender of charges under the stringent Protection of Children from Sexual Offences (POCSO) Act, 2012, and charged him under the comparatively lenient provisions of the Indian Penal Code (IPC), 1860. Justice Ganediwala held that groping a minor's breast without disrobing her would amount to molestation under the IPC and not sexual assault as envisioned under the POCSO act. The alleged misinterpretation of what is a sexual assault against a minor has caused great consternation among many.
Attorney General KK Venugopal, state of Maharashtra and National Commission for Women had appealed against the high court's verdict. The top court on January 27 stayed the verdict observing it was "unprecedented and likely to set a dangerous precedent".
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