The Supreme Court on Thursday, quashed a Bombay High Court order which acquitted a man from sexual assault charge under POCSO Act while observing that skin-to-skin contact only 'molestation' under the IPC. This was one of the only two instances when the Attorney General of India had appealed against a High Court order on the criminal side. Last time in 1986, the then AG was able to prevent the public hanging of an individual in Jaipur's Ramleela Maidan.
Attorney General KK Venugopal had challenged the controversial skin to skin contact judgement. As it was being impugned in the Supreme Court on Thursday, Justice UU Lalit said this was perhaps the first time that the Attorney General had filed an appeal on the criminal side.
Justice S Ravindra Bhat then intervened to clarify that in 1985 too the then Attorney General had challenged a judgement of the Rajasthan High Court which ordered a public hanging.
In 1986, the Attorney General of India, K Parasaran won an appeal against a Rajasthan High Court judgement which ordered the execution of the death sentence of a man at either the stadium ground or Ramlila maidan of Jaipur. The impugned judgement had also ordered to give widespread media publicity including the date and time of the execution.
In Attorney General of India v Lachma Devi [A.I.R. 1986 S.C. 467], the apex court observed, "It is undoubtedly true that the crime of which the accused have been found to be guilty is barbaric and a disgrace and shame on any civilised society which no society should tolerate; but a barbaric crime does not have to be revisited with a barbaric penalty such as public hanging."
It then held that execution of death sentence by public hanging would be a barbaric practice clearly violative of Article 21 of the Constitution.
A Supreme Court bench of Justices UU Lalit, S Ravindra Bhat and Bela Trivedi quashed the controversial 'skin to skin contact' judgement of the Bombay High Court and observed that the most important ingredient of sexual assault is sexual intent and not skin to skin contact.
The Bombay High Court had overruled a sessions court judgement that awarded sentence to a man with three years of imprisonment for the offences under the POCSO Act as also under IPC section 354. The sentences were to run concurrently. Justice Pushpa Ganediwala said in the judgement that since the man groped the child without removing her clothes the offence could not be termed as sexual assault (under section 7 of the POCSO Act) but it does constitute the offence of outraging a woman's modesty under IPC section 354. The convict's sentence was thereby reduced.
The apex court, in its ruling today stated, "We have held that when the legislature has expressed clear intention, the courts cannot manufacture ambiguity in the provision. It is right that courts cannot be overzealous in searching ambiguity," the bench said
The top court also added that sexual intent is important in such cases and that it can't be taken away from the purview of the Act. The purpose of the law cannot be to allow the offender to escape the meshes of the law.