Tag: #POCSO

-report by Zainab Khan

A bench of Bombay High court consisting of Justice A.S.Gadkari reduces the sentence of a rapist in a criminal appeal in the case of Vitthal Rajendra Jogade vs The State Of Maharashtra.

FACTS

In this case, the appellant was convicted u/s 376(2)(I) of IPC and sec 4 and 10 of POCSO Act 2012 for raping a minor girl of 11 years old. On 22nd April 2014 appellant went to the victim’s house for repairing her Cable T.V. When nobody was in the house appellant raped the girl by inserting his fingers into her vagina. On her shouting and sweating, he ran
away from the house. An FIR was lodged on the same day in Akkalkot North Police Station by the victim’s family. Further, a charge sheet was filed for the offense alleged against the appellant before Special Court. After trial and examining all witnesses, the learned Special Judge, Solapur sentenced him to rigorous imprisonment of 10 yrs and a fine of Rs. 15000 u/s 376(2)(i) of IPC and sec 4 &10 of POCSO ACT.

APPELLANT ‘S CONTENTION

Learned Adv. Shraddha D.Sawant appeared for the appellant side. She contended that the allegation put on the appellant was false. There was a land dispute between the appellant’s father and his uncle. Since the appellant’s uncle and victim’s father were close friends and therefore the allegations have been put on him. The counsel pleaded for his
innocence.

RESPONDENT CONTENTION

Learned Adv. S.S.Kaushik was appointed to represent the respondent. The witnesses were examined by the Trial Court which included the mother of the victim and her mother’s friend. Her mother’s friend had called the victim’s mother to accompany her to an agricultural field and it was after she insisted that the mother left the accused alone with the victim. The victim had also called her cousin after the incident around 2-2:30 p.m. and he had arrived, therefore he was also examined. The doctor who had conducted the medical examination was also examined and deposed that the victim had a history of sexual assault around 2 p.m. on 22nd April 2014.

JUDGEMENT

After cross-examining all the witnesses and medical reports, the charges over the appellant prove to be true. The court upheld the decision of the Special Judge, Solapur but reduces the sentence from 10 yrs to 8 yrs. The court observed-

“It is the settled position of law that, the absence of any injuries on the person of the prosecutrix who was the helpless victim of rape might not by itself discredit the statement of the prosecutrix and in such a situation the non-production of a medical report would not be of much consequence if the other evidence was believable. That, corroboration is not the sine qua non for a conviction in a rape case. That, the evidence of prosecutrix stands at higher pedestal than injured witness and needs no corroboration.”

The court relied on the judgment of Adu Ram Vs. Mukna & Ors. Reported in (2005) 10 SCC 597, which discusses the proportion between crime and punishment. The conviction of the appellant was upheld, however, the sentence for rigorous imprisonment was reduced to 8 years.

ABSTRACT

Child sexual abuse is a dark reality that is increasing in India and with numerous harmful impacts. It is a universal and human rights issue. It was not conceded as a serious crime before the “Protection of Children from Sexual Offences Act, 2012”. Child sexual abuse includes the provision concerning child rape, harassment and pornography. This article highlights the types of child sexual abuse and legal provisions related to child sexual abuse.

Introduction 

Child sexual abuse means the physically or mentally ill-treatment with a minor or a child with sexual intention. Children are abused by an outsider (unknown to the child) or an insider (family member and relatives). In India, many cases of child sexual abuse are not recorded because many parents prefer to stay quiet. 

It happens when a person uses a child for his/her sexual indulgence. Child sexual abuse is in the form of physical contact and non-physical contact. The child does not have the authority to give consent. Consent or dissent both are covered under child sexual abuse.

Various kinds of child sexual abuse:

• An adult revealing their private parts and forcing the child to do the same. 
• An adult touching child’s sexual organs and compelling them to do the same. 
• An adult initiating sexual intercourse with a child with or without consent.
• An adult showing or encouraging a child to hear and watch pornographic material.
• Obscene phone calls and indecent messages.
• Sharing and preserving indecent images of children. 
• Making child to listen sexual content that harms their mental and physical health.
• Adult married to minor and minor to minor is considered a forced relationship.

Laws relating to child sexual abuse

Before 2012, In India, there was no particular law for child sexual abuse. It was governed by the various provisions of the IPC. Section 377[i] deals with the sexual intercourse against the nature, Section 354 states the assault or criminal force on women with intention to indignant her modesty[ii]. Sec.509 deals with insulting women through word, or gesture or showing object which is inappropriate with the intention[iii]. Section 374 defines rape[iv]. The Protection of Children against Sexual Offences Act, 2012 was enacted by Parliament to save children or minors from sexual abuse and it is gender neutral.

Provision contained in POSCO Act

• Section 19 of the POSCO Act, states that the reporting of the cases child sexual abuse is obligatory.
• Section 30(iii) of the Juvenile Justice Act, 2015 states that when a child has been abused sexually, then Child Welfare Committee (CWC) should take actions for child’s rehabilitation. Such a case must be reported to SJPU or local police under POSCO Act, 2012.
• Section 19(6) of the POSCO Act, deals with sexual offence against a child and mandates that a report of the case should be presented in front of CWC within 24 hours after the filing of the case[v].
• Rule 4 (7) of POSCO Act, obliges the CWC to assist child and the family during investigation.
• The Special court should determine the age of child define under Sec. 34(2) of POSCO Act[vi].
• Section 40, POSCO Act 2012 deals with the victim child’s right to receive free legal counsel during the trial[vii].

Others-

• Minor has the liberty to state his statement only where he is comfortable.
• To provide a speedy trial and video recording to ensure confidentiality.
• The child should be medically examined by a female doctor, in the presence of a person whom the child trusted, with his/her guardian consent.
• Contact between the victim and the accused should be avoided during video recording.
• The accused defender can ask questions but those questions would be asked through a judge to a juvenile.

Punishment under POSCO

• Section 4 of the POSCO Act deals with the punishment for penetrative sexual assault, the accused shall be punished not less than 7 years or which may be extended to life imprisonment[viii].
• If a trusted authority or a person or police officer is committed an aggravated sexual assault with child, he will be punished under Sec.6 of the POSCO Act[ix].
•  If a person has committed non-penetrative assault, then he will be punished under Sec.10 of the POSCO Act[x].
• Section 12 of the POSCO Act prescribed punishment for three years with a fine[xi].

Further, The Act prescribes punishment in accordance with the gravity of the offence. Storing pornographic material related to the child is an offence, punishment for which imprisonment is in description form, which may be extended to three years or fine or with both.

Landmark Judgements

Ghanshyam Misra v. The state[xii]

In this case, Ghanshyam Misra was the school teacher of a 10-year-old and raped her at the school premises. The schoolteacher is the trusted authority of the child. The court sentenced the accused for seven-year imprisonment with a fine and ordered compensation to the father of the girl.

State v. Pankaj Chaudhary[xiii]

In this case, the court held the accused liable only for ‘outraging the modesty of a woman’. The case revolves around the digital penetration of anus and vagina of a girl child. Before 2012 digital penetration was not recognized as an offence under IPC. 

Misuse of POSCO Act

Many cases were reported based on false allegations. The Kerala High Court has held that the petitioner misused the provisions of the Protection of Children from Sexual Offences Act (POCSO Act) so she will be liable. The petition was filed by the victim’s mother. The allegation was that her 16-year-old daughter was alone at home the accused came to her house and hold her. In the investigation, the police officers found that the accused was far away from her house on the incident day. The court held that the allegation on the accused was fictitious. According to Section 22 of the POSCO Act, police can take action against the petitioner. The court dismissed the petition[xiv].

Conclusion

Sexual abuse of a child is a serious crime. POSCO Act has changed the scenario of child sexual abuse in India as prior to it there wasn’t any specific law dealing with said issue. Yet, the need to improve the trial and make it child-friendly is often felt.

---

[i] Pen. Cod.§ 377.

[ii] Pen. Cod. § 354.

[iii] Pen. Code.§. 509.

[iv] Pen. Code. § 374.

[v] POSCO Act, 2012, Bill No. 32 of 2012, §19(6).

[vi] POSCO Act, 2012, Bill No. 32 of 2012, §34(2).

[vii] POSCO Act, 2012, Bill No. 32 of 2012, § 40.

[viii] POSCO Act, 2012, Bill No. 32 of 2012,§ 4.

[ix] POSCO Act, 2012, Bill No. 32 of 2012,§ 6.

[x] POSCO Act, 2012, Bill No. 32 of 2012, §10.

[xi] POSCO Act, 2012, Bill No. 32 of 2012, § 12.

[xii] AIR 1957 Ori 78.

[xiii] Delhi High Court criminal appeal 813/2011.

[xiv] 27^th July 2018, Kerala High court comes out against misuse of provisions of POSCO Act, The Indian Express, https://www.newindian express.com.

For regular updates, join us:

WhatsApp Group:

https://chat.whatsapp.com/GRdQLsHRwmB7QVRmS3WKtP

Telegram:

https://t.me/lexpeeps

LinkedIn:

https://www.linkedin.com/company/lexpeeps-in-lexpeeps-pvt-ltd

This article is written by Prachi Yadav, 2^nd Year student from Mody University of Science and Technology, Laxmangarh, Rajasthan

                                    

During the proceeding of a matter, Kerala High Court on Monday while interpreting Section 375 of IPC stated as to when the body of the Victim is manipulated to simulate a sensation similar to penetration of an orifice, then such act also leads to the offense of rape.

The above Judgment was made while deciding a matter wherein a minor child stated that his neighbor had sexually assaulted her on various occasions for six months. The offense not only attracts section 375 of IPC but also an offense under the protection of Children from Sexual Offences Act, 2012.

The offense was registered and the Trial Court after the evaluation of the entire matter has found the accused guilty and was sentenced. So the accused moved to the High Court stating that the victim has not proofed her age and also as per the definition of rape stated in IPC states rape happens when any accused penetrate his penis into the Vagina, mouth, Urethra, or anus of women but in the present case the accused is been accused of inserting the penis between the thighs of the victim does not amounts to rape.

After the appeal in the Kerala High Court, the difficulty faced by the High Court was in solving the problem that has been arrived before the bench whether the act to accused will be considered as rape or not. The further solved this problem and interpreted the definition of rape by stating the accused had committed the offense of rape as he had done the penetrative sexual act between the thighs of the victim to obtain sexual gratification which amounts to rape.

-Report by RIDDHI DUBEY

A single-judge bench of Justice P Velmurugan of the Hon’ble Madras High Court while hearing a woman’s appeal against the acquittal of a man charged with sexually assaulting her two-year-old daughter said that the woman’s statement was recorded, and the English term “semen” was incorrectly spelled out as “semman” in Tamil which means red soil color. By taking advantage of that mistake, the accused was successful in securing acquittal in the Trial Court.

The case dates back to 2017 when the mother left her two-year-and-nine-month old daughter with a neighbor while she went grocery shopping. After shopping, when they got home, the child refused to eat and started crying, claiming she was having pain in her private parts. When the girl’s mother checked her clothes, she discovered white stains on her body and undergarments. She took her to the hospital, where it was determined that the child had been sexually assaulted.

The neighbor was charged under the Protection of Children from Sexual Offenses (POCSO) Act. Following the trial, a POCSO Court acquitted the accused citing the prosecution’s failure to prove the case beyond a reasonable doubt. However, The Police Report clearly stated that the woman said “semen” and spotted a “white color fluid” on the child’s private parts. The English word “semen” was misunderstood as “semman” in Tamil, according to the Court.

The Court observed that “The Trial Courts sometimes do not apply their minds; instead of exercising their discretionary power to order a re-investigation or to summon relevant records they only look for a proof beyond a reasonable doubt. With the exploitation of such procedural flaws, the accused gets the benefit of the doubt. In circumstances like these, a high value cannot be placed on the technical basis of proof.”

The Court, setting aside the decision of the Trial Court, held the accused guilty of section 9 of the POCSO act punishable under Section 10 of the Act. It further stated that in cases of child abuse, the onus of rebutting an accusation falls on the accused.

-Report by VANESSA RODRIGUES

The Jharkhand High Court, while hearing a bail application in a sexual assault of a minor case, gravely criticized the investigating authority and the officers of the case for defiance of judicial orders.

The victim, who shall remain nameless, was a 13-year-old minor girl who was sexually assaulted by the petitioner and the victim had neither been made a charge sheet witness nor was presented before the court, despite judicial orders which instructed them to do the same.

The learned counsel representing the petitioner submitted that the victim of the case was not a charge sheet witness and had not even been examined yet. He further stated that despite several letters written to the Superintendent of Police, Sahebganj, and the DIG, Dumka, the petitioner is rotting in custody for more than 3 years and the victim is not being examined.

The court stated that it is really surprising why the Investigating officer has not made the victim a charge sheet witness, despite the case being registered under POCSO Act and the victim is a 13-year-old minor girl. Further, the court found that the Trial Court has sent several letters to the Superintendent of Police and also to the Director-General of Police, Jharkhand asking to produce the victim in front of court but the said letters yielded no response and no actions were taken.

The court concluded that prima facie the acts of the Investigating officers and authorities cannot be said to be bonafide since leaving out the main person as a witness in the charge sheet and continuous defiance of court orders are bound to arise questions and suspicions. The court feels that the officers, by not responding to judicial orders, have committed contempt of Court.

The court ultimately stated that an affidavit should be filed by the Director-General of Police, Jharkhand personally within 3 weeks after making proper inquiry and verification.

-Report by Anuj Dhar

-Report by Saksham Srivastava

The Hon’ble High Court of Judicature, Allahabad, refuses to grant custody of a ‘minor’ husband to his wedded ‘major’ wife. The Hon’ble Court says that such an act would amount to an offence under the POCSO Act. The bench headed by Justice J.J Muneer, is of the view, that the marriage between a minor and major is voidable at the option of the party, as given under the POCSO Act and if allowed to stay together, it would result in sanctioning cohabitation between a minor and major.

Petitioner’s Contention

The petitioner, named as Haushila Devi, is the mother of Manish, age 16 years and who is also made as to the petitioner number one by her mother, alleges in hon’ble court that the respondents, namely, Jyoti and her family members forced her son into procuring matrimonial ties with Jyoti, who is a major and is also the respondent number one in the aforesaid case. The learned counsel on behalf of Haushila Devi, claims that her son, Manish has been illegally confined in the house of the respondents, and the conspiracy of the said offence is carried by Jyoti, her mother Pamila Devi, and her two brothers. The petitioner has filed a writ of habeas corpus (to produce the body) in the Hon’ble High Court of Allahabad under Article 226 of the Constitution of India, to retain the care and custody of the minor child, Manish, back to her mother who is also the natural guardian of Manish, as claimed by the petitioner number two, Haushila Devi. The learned counsel argues further, that, Manish being a minor of age 16 years is under no competence to enter into any such life-long holy agreements like marriage. They claim that the marriage so performed is void under the provisions laid down in the Hindu Marriage Act, 1955 and the Prohibition of Child Marriage Act, 2006. The petitioner further claims that since Manish is a minor as per the law, hence, he cannot be entrusted with the decision-making choice of residing with the strangers, thereby the care and custody should be handed over to the natural guardian, i.e.- her mother, Haushila Devi, also the petitioner number two in the said case.

Respondent’ Contention

The learned counsel on behalf of the respondents, i.e.- Jyoti and her family members, contends that the legislature did not outlay any such provisions of the aftermath about the marriage being solemnized in breach of section 5 (3) of the Hindu Marriage Act, 1955. He argues that the marriage is neither void nor voidable, but valid. As per the law, the penal punishment would be inflicted upon the party who was a major at the time of the commission of such foul act. The learned counsel is of the view that if both the party is minor at the time of such acts, then their parents upon whom the responsibility was bestowed, would be dealt as per the law. He further argues that no matter who suffers the penal consequences, the marriage cannot be solemnized being void or voidable. The learned counsel says that holding a marriage to be void under the Prohibition of Child Marriage Act, it should strictly adhere to the stipulations laid down under section 12 of the said Act, else the marriage could be declared as voidable at the option of the party who was minor at the time of marriage. The respondents argued through their learned counsel that Manish who is a minor of 16 years, is about to attain majority and hence, should be bestowed upon with the responsibility of residing with whomsoever he chooses. Section 17 of the Wards Act, 1890 lays down the provision for the minor to chose his/her natural guardian through their own. Therefore since Manish does not want to stay wither mother, he cannot be compelled by the hon’ble court to do so.

Judgment

The bench of Hon’ble High Court of Allahabad, led by Justice J.J Muneer, in the aforesaid case of Manish and Anr v. State of U.P. and 7 others, that the marriage in the said case is voidable at the option of the party who is a minor, i.e.- Manish of age 16 years. The Hon’ble court said it loud and clear that they cannot allow the care and custody of the Manish to be entrusted with his wife as it would originate an event that could facilitate the cohabitation between the minor and the major, regarded as an offence under the POCSO Act, 2006. The court even considered the essential fact of the POCSO Act, that it prevents any sort of cohabitation between the major and the minor. The Lordship also highlighted the sections under the POCSO Act, which defines the offence and also inlays the penal consequences, under sections 3 & 4 respectively, irrespective of the age or sex of the offender. The Hon’ble court ordered to send the minor into the state facilities like ‘Child Home’ to reside till he attains the age of 18 years and thereby he can choose with whom to reside after completion of his age as major. If he still chooses to stay with her mother during the said period, he would have to apply the Child Welfare Committee Act, 2012. The order should comply immediately.

Actor Pearl V Puri who is been accused of raping a five-year child has been granted bail on Tuesday from Judicial custody. Earlier his bail plea was rejected by the Vasai court.

Peral V puri is an actor who has done various Ekta Kappors shows. He is accused of raping a minor girl back in 2019 on the sets of Bepanah Pyaar. The victim is his co-actor Ekta Sharma’s daughter. The victim’s father alleged charges on him for raping his minor when the victim herself told his father that the actor had touched her private parts. So on 4th June 2021, Puri was arrested for 14 days of judicial Custody. After which he applied for bail.

The charges which are levied are Section 376 AB of IPC which says Whoever, except in the cases provided for in subsection (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not the less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine. And Section 4,8,12, 19 21 of POCSO Act the Protection of Children from Sexual Offences Act, 2012 (POCSO) is enacted with the main objective of protecting children from various kinds of sexual abuses and offences.

The hearing for bail application has been held thrice in session court of Vasai and on Tuesday Judge Aditi Kadm Granted him bail on a cash surety of Rs. 25,000/-.

-Report by Riddhi Dubey