To begin with, if there is one judgment of Bombay High Court which is attracting maximum attention and a lot of strong reactions from even the top court, it is this one which is titled Satish vs The State of Maharashtra in Criminal Appeal No. 161 of 2020 delivered on January 19, 2021 in which the Nagpur Bench of the Bombay High Court has held that groping a child’s breasts without ‘skin-to-skin contact’ would amount to molestation under the Indian Penal Code but not the graver offence of ‘sexual assault’ under the Protection of Children from Sexual Offences (POCSO) Act. A single Bench of Bombay High Court of Justice Pushpa Ganediwala made the aforesaid observation while modifying the order of a sessions court that held a 39-year-old man guilty of sexual assault for groping a 12-year-old girl and removing her salwar. The Court has now sentenced the man under Section 354 IPC (outraging a woman’s modesty) to one year imprisonment for the minor offence.
As we see, this judgment authored by a single Judge Bench of Justice Pushpa V Ganediwala of Nagpur Bench of Bombay High Court sets the ball rolling by first and foremost pointing out in para 2 that, “This is an appeal against the judgment and order dated 05.02.2020 in Special Child Protection Case No. 28 of 2017 passed by the Extra Joint Additional Sessions Judge, Nagpur, by which the appellant is convicted for the offence punishable under Sections 354, 363 and 342 of the Indian Penal Code (hereinafter referred to as IPC) and Section 8 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as POCSO Act), in Crime No. 405 of 2016 registered at Police Station Gittikhadan, Nagpur, District – Nagpur.”
Be it noted, para 3 then states that, “For the offence punishable under Section 8 of the POCSO Act read with Section 354 of the IPC, the appellant is sentenced to suffer R.I. for three years and to pay fine of Rs. 500/-, in default of fine to suffer R.I. for one month. For the offence punishable under Section 363 of the IPC, the appellant is sentenced to suffer R.I. for two years and to pay fine of Rs. 500/-, in default of fine to suffer R.I. for one month. For the offence punishable under Section 342 of the IPC, the appellant is sentenced to suffer R.I. for six months and to pay fine of Rs. 500/-, in default of fine, to suffer R.I. for one month. All the substantive jail sentences were directed to run concurrently. The appellant is given set off for the period of sentence, he has already undergone.”
While dwelling on the prosecution story, the Bench then puts forth in para 4 that, “The prosecution story, in brief, is as under :
i) On 14.12.2016, the informant (mother of the prosecutrix) (PW-1) lodged a report at police station Gittikhadan, Nagpur, stating therein that the appellant took her daughter (prosecutrix) aged about 12 years, on the pretext of giving her guava, in his house and pressed her breast and attempted to remove her salwar. At that point of time, the informant reached the spot and rescued her daughter. Immediately, she lodged First Information Report. On the basis of the said FIR, crime came to be registered against the appellant / accused vide Crime No. 405 of 2016 (Exh. 1) for the offence punishable under Sections 354, 363 and 342 of the IPC and under Section 8 of the POCSO Act.”
To be sure, para 11 then reveals that, “At the outset, the informant – PW-1 and the prosecutrix – PW-2 are the star witnesses. The age of the prosecutrix at the relevant time was 12 years and this fact is not seriously disputed by the learned counsel for the appellant.”
It is worth noting that it is then mentioned in para 12 that, “The informant – PW-1 – the mother of the prosecutrix deposed that the incident took place on 14.12.2016. On that day at about 11.30 AM, her daughter – the prosecutrix (name kept undisclosed) went to bring guava. As she did not come back for a long time, she started searching for her. Her neighbour told her that the appellant, who was staying in the vicinity of their house, took her daughter to his house and showed her the house of the appellant. PW1 went there calling “Laxmi, Laxmi”. She saw the appellant coming down from the first floor. She asked the appellant about the whereabouts of her daughter. He denied the presence of the prosecutrix in his house. PW-1 searched for her daughter on the ground floor and then she went up to first floor. The room was bolted from outside. She opened it and found her daughter. Her daughter was crying. She took out her daughter from that room and her daughter narrated the incident that on the pretext of giving guava to her, the appellant brought her to his house and pressed her breast and when he tried to remove her knicker, she shouted. Thereafter he went out, after bolting the room from outside. Immediately, PW-1 along with her daughter proceeded for Police Station and lodged report.”
Going ahead, it is then stated in para 13 that, “PW-2 – Prosecutrix testified that on the day of incident, when she was going to bring guava, the appellant caught her hand and told her that he will provide guava to her and he took her to his house. He tried to remove her Salwar and pressed her breast. Then she shouted. The appellant pressed her mouth by his hand. The appellant went down by closing the door of the room from outside. Thereafter, her mother opened the door and entered the room and brought her outside. Then they went to Police Station for lodging report.”
Truth be told, it is then observed in para 15 that, “A perusal of the testimony of PW-1 and PW-2 on the point of incident would reveal that both the witnesses are consistent on the point that the appellant pressed the breast of the prosecutrix. With regard to removing of knicker, though in her chief PW-1 stated that the appellant/ accused was trying to remove knicker of her daughter, however, in cross examination she has corrected her statement and deposed that she told the police that the appellant tried to remove Salwar of her daughter. The prosecutrix deposed about removing of her salwar. So there is no confusion with regard to whether the accused tried to remove salwar or knicker.”
Simply put, it is then stated in para 18 that, “Evidently, it is not the case of the prosecution that the appellant removed her top and pressed her breast. The punishment provided for offence of ‘sexual assault’ is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. Considering the stringent nature of punishment provided for the offence, 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 of the Indian Penal Code. For ready reference, Section 354 of the Indian Penal Code is reproduced below :
“354. Assault or criminal force to woman with intent to outrage her modesty. – Whoever assaults or uses criminal force to any woman, with the intention to outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.””
As it turned out, it is then made clear in para 21 that, “Section 7 of the POCSO Act, defines sexual assault and the minimum sentence provided is three years and Section 354 of the Indian Penal Code, which is related to outraging the modesty of a woman, prescribes minimum sentence of one year. In the instant case, having regard to the nature of the alleged act by the appellant and having regard to the circumstances, in the opinion of this Court, the alleged act fit into the definition of the offence as defined in Section 354 of the Indian Penal Code.”
What’s more, it is then brought out in para 25 that, “The learned APP read out Section 7 of the POCSO Act, which defines sexual assault and submitted that the act which has been proved by the prosecution “pressing of breast” comes within the definition of sexual assault under Section 7 of the POCSO Act.”
Hence it is then observed in para 26 that, “It is not possible to accept this submission for the aforesaid reasons. 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.”
Now coming to the concluding paras. Para 27 lays down that, “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 and sentenced him to undergo R.I. for one year and to pay fine of Rs.500/-, in default of fine to suffer R.I. for one month. The sentence for the offence punishable under Section 342 of the Indian Penal Code i.e. six months and fine of Rs.500/-, in default to suffer R.I. for one month, is maintained. The accused is on bail. His bail bond stands forfeited. Issue Non-bailable warrant against the appellant – accused. All the substantive jail sentences shall run concurrently and the appellant – accused is entitled for set off under Section 428 of the Code of Criminal Procedure.” Finally, it is then held in the last para 28 that, “Criminal Appeal stands disposed of accordingly.”
It cannot be lightly dismissed that none other than the top court has stayed this ruling which acquitted a 50-year-old labourer from Maharashtra’s Gadchiroli district holding that groping a minor without removing her clothes was not sexual assault but molestation after Attorney General KK Venugopal pointed out that the judgment was likely to set a dangerous precedent. Venugopal added that, “It will mean that if a cloth is touched no case under Section 8 of the POCSO Act is made out. This Court must take notice of the judgment.” Justice Pushpa Ganediwala had ruled that the act of holding the hands of a minor “prosecutrix” or unzipping trousers in front of her, an act witnessed by PW-1 (prosecution witness1), in the opinion of the court did not fit with the definition of aggravated sexual assault. She reversed the conviction of the man Libnus Kujur for aggravated sexual assault that was a charge brought against him because the child was younger than 12 years of age.
Of course, it cannot be lightly dismissed that a petition filed by advocate Manju Jetley on behalf of the Youth Bar Association of India said that the High Court had also named the minor victim in its judgment which violated Section 228B of the IPC. It also cannot be lightly dismissed that the National Commission of Child Rights (NCPCR) and the National Commission for Women (NCW) took a serious note of the January 19 ruling. NCW expressed a desire to challenge the judgment before the Supreme Court and NCPCR wrote to the Maharashtra Chief Secretary to seek a review of the ruling. It added that, “It has been observed by the Commission (NCPCR) that the prosecution has failed in representing the case of the victim properly. If the prosecution had made the submissions as per spirit of the POCSO Act, the accused would not have been acquitted of the serious offence against the minor.”
Furthermore, the letter added that, “Further, the remark “skin-to-skin… with sexual intention, without penetration” also needs to be reviewed and the State should take note of this, as it seems to be derogatory to the minor victim.” This condemnable incident had happened on February 11, 2018. On October 5, 2020, a special POCSO court in Gadchiroli convicted the labourer under Sections 354-A(1)(i) (sexual harassment) and 448 (house trespass) of the IPC and Sections 8 (punishment for sexual assault), 10 (punishment for aggravated sexual assault) and 12 (punishment for sexual harassment) read with Section 9(m) (sexual assault of a child below 12 years of age) and 11(i) sexual harassment) of the POCSO Act. He was sentenced to five years rigorous imprisonment for aggravated sexual assault.
It is worth noting that Section 7 of the POCSO Act defines sexual assault of a child as “whoever, with sexual intent touches the vagina, penis, anus or breast of such person…” What is most problematic in this judgment is that the single Judge Bench of Justice Pushpa Ganediwala who delivered this judgment stated that, “as per the definition of sexual assault, a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence” with “physical contact” requiring “skin-to-skin contact” and not just any contact. Strictly speaking, if this is agreed to, it would be interpreted as that if an offender uses a condom while penetrating the child, this would not amount to an offence since there was no direct contact. How can this be justified ever? Also, it cannot be overlooked that the serious offence under POCSO Act which carries a minimum of three years imprisonment which may extend to five years along with fine was reduced to Section 354 of IPC which carries a considerably lower punishment of only one year of minimum imprisonment. In addition, this case was delayed for nearly four years.
We cannot afford to ignore that Flavia Agnes who is an eminent women who has done extensive research in cases of child sexual abuse and is co-founder of Majlis Legal Centre while differing from those who commented that the Judge Pushpa Ganediwala who was elevated to the Bombay High Court in 2019 lacks exposure to the letter and spirit of the POCSO Act pointed out in her enlightening editorial titled “Weakening The Law” in ‘The Indian Express’ dated February 1, 2021 that, “ Lawyers and activists engaged with the RAHAT project of Majlis Legal Centre have closely observed the manner in which she conducted the trials in cases of child sexual abuse even before the enactment of the POCSO Act, when she was the trial judge for sexual offences against women and children in the Bombay City, Civil and Sessions Court. In our first case, which involved the sexual abuse of a four-year-old and where the police had delayed filing an FIR, she had convicted the accused, a watchman, for seven years. A high-profile criminal lawyer, Majeed Memon, appeared for the accused supported by the trustees of the school. On the other hand, our support person was a fresh graduate with no exposure to criminal courts. But it was the Judge’s sensitivity that helped in a fair trial. In another case which concerned the father raping his daughter, where the FIR was filed after 18 months, she had argued that when the police refused to register a complaint, how can the illiterate mother be blamed for delay in filing. She convicted and sentenced the accused to 10 years of rigorous imprisonment. The most challenging case she presided over is the sexual abuse by multiple men at Kalyani Mahila Bal Seva Sanstha in Navi Mumbai. We had marvelled at the manner in which she conducted the trial. There were around 10 accused and some survivors had to be examined in sign language. In May 2013, six accused were convicted, including the founder-director, of the rape of five mentally-challenged female inmates, three of whom were minors. One of the victims died after she was gang raped. Hence, prime accused and director of orphanage was also convicted of murder. So what happened in this case. Why such a mindboggling judgment that has been condemned by all concerned stakeholders – one which can become a precedent to be followed by subordinate judiciary? The harm that has been caused to the minor in this particular case as well as all future cases, cannot be easily overlooked. This judgment needs to be set aside and the comments expunged to repose the faith of all survivors of sexual violence in the judicial system.”
So we have to concede that Justice Pushpa has a good track record and it is only in this judgment that she has erred for which she certainly deserved to be reprimanded but her entire career should not be put in jeopardy! It also cannot be ignored that mandatory sentences are counterproductive to the aim of reducing crime or acting as a deterrent. But regarding this judgment’s strong criticism we also cannot overlook what is mentioned in the editorial of Hindustan Times dated January 26, 2021 that, “The ruling is disturbing. It is a literal interpretation of the law and overlooks the fact that POCSO does not mention clothing as a factor in the crime of molesting a child. This is a matter of violating the bodily integrity of the victim. The interpretation also does not recognize the long-term psychological damage that child sexual abuse victims suffer. This reading of the law will dilute cases of child abuse and make it difficult to ensure justice. The National Commission of Women has pointed out that the order will have a cascading impact on women safety and trivialized the legal architecture in place, and has decided, rightly so, to challenge the order. The issue should also force a relook at the wording of the Act and other laws, which deal with child abuse. There can be no room for ambiguity in child abuse cases and any loophole which allows for this must be plugged at once.”
All said and done, one has to always concede that there has to be zero tolerance on sexual offences especially in child abuse cases. All the loopholes must be first quickly identified and then deliberated, discussed and debated upon and then reformed adequately to meet the present circumstances where the cases of violence and sexual offences against children are increasing very rapidly! No doubt, there can be no leniency at all for sexual offences against children!