SC Sets Aside "Skin to Skin" Judgment of Bombay HC, Says "Sexual Intent" is Important

NEW DELHI: The Supreme Court on Thursday overruled the Bombay high court under POSCO Act, ruling that sexual intent, not skin to skin contact with the child is the most significant factor defining sexual assault. There will be no charge of sexual assault under POSCO Act if there is no direct contact between the accused and the victim.

The high court's decision was overturned by a bench led by Justice U U Lalit, who declared that touching the sexual portion of the body or any other act involving physical contact done with sexual intent would be considered sexual assault under section 7 of the POSCO Act. "Touching through clothes/sheet with sexual intent is covered in the definition of POCSO. Courts should not be overzealous in searching for ambiguity in words that are plain," the Supreme Court bench said.

We have held that when the legislature has expressed clear intention, the courts cannot create ambiguity in the provision. It is right that courts cannot be overzealous in creating ambiguity," the bench, also comprising Justices S Ravindra Bhat and Bela M Trivedi, said.

As an amicus curiae, senior lawyer Siddharth Luthra represented the convict in the case, while his sister, senior counsel Geeta Luthra, represented the National Commission of Women. According to the Supreme Court, this time a brother and sister were pitted against each other.

The controversial verdict, Attorney General KK Venugopal had previously informed the Supreme Court that it would set a "dangerous and terrible precedent" that needed to be overturned. On January 27, the Supreme Court, hearing separate petitions from the Attorney General and the National Commission for Women (NCW), stayed a decision acquitting a man under the Protection of Children from Sexual Offenses (POCSO) Act for groping a minor. A man was sentenced to three years in prison by the session court violating the POSCO Act as well as IPC section 354. The sentences were supposed to go in parallel.

The POCSO Act defines sexual assault as when someone "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"

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