Saurabh Malik
Chandigarh, March 3
The Punjab and Haryana High Court has ruled that any act involving touching of private parts or a child’s primary/secondary sexual characteristics with a sexual intent involving physical contact amounts to sexual assault. Penetration was not “sine qua non” or an essential condition for attracting the penalty of sexual assault.
The ruling by Justice Vinod S Bhardwaj came in a case where three children in conflict with law (CCL) were convicted and sentenced to two year imprisonment for commission of offences under Section 377 of the IPC and 10 of the POCSO Act.
Appearing before the Bench, their counsel contended that the eight-year-old victim never deposed about being sodomised and only stated that the CCL had done ‘wrong act/bad act’ with him. Referring to the victim’s medical examination, the counsel added absence of external injury marks or detection of semen on the victim’s body or clothes defied any possibility of forcible intercourse or sodomy. As such, conviction under Section 377 was misconceived.
Justice Bhardwaj asserted: “The contention of the petitioners is restricted only to one of the aspects of the scope of Section 377 i.e. sodomy. The suggestive interpretation of the petitioner that Section 377 cannot be attracted, but for occurrence of an eventuality where there is an anal penetration does not find support in the statute.”
The very fact that Section 377 was intended to be gender neutral made it clear that the legislature mandated it to be attracted only in the event of a penetration other than contemplated under Section 375. “The offence under Section 377 of the IPC may also be attracted against two women, where the element of penetration, as projected by the counsel for the petitioners, may not be a possible eventuality. Thus, the argument of the petitioners does not fall in tandem with the statutory mandate.”
Dismissing the pleas, Justice Bhardwaj asserted Section 377 could be attracted even in a situation where the penetration happened to be on any other part of the victim’s body. The predominant intent in the commission of the act, however, had to be sexual. The petitioners’ arguments that conviction was bad for want of any external mark of injury around the victim’s body was, as such, liable to be rejected.
HC: Touching private parts with sexual intent is assault
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