TRIAL OF OFFENCES AND JUDICIAL PRONOUNCEMENTS UNDER THE POSCO ACT
ABSTRACT:- The Protection of a nation depends upon the quality of children and the welfare of children is considered as paramount. They are wholly entitled to protection against inhuman, neglect, and exploitation from serious offences. Children are important supreme national assets. The sole legislation in India that aimed at protecting the rights of a child was the Goa Children Act,2003 and the Rules 2004. Under the provisions of the Indian Penal Code,1860 child sexual abuse accounted for an offence under Sections 375,354 and 377. These provisions neither protect male children from sexual abuse nor protect their modesty. Also, the definitions of the terms ‘modesty’ and ‘unnatural offence’ are not provided in the code. In India, the POCSO Act 2012 is not only the legislation which deals with child sexual abuse cases. The POCSO Act cannot be a complete code in itself and provisions of the Code of Criminal Procedure,1973, Indian Penal Code,1860, Juvenile Justice Act, and Information Technology Act Of 2000 overlap the procedure and specifies the offences. The Protection of Children from Sexual Offences Act,2012 (POCSO Act) is legislation which aims at protecting children from all types of sexual abuse. Children are the heaven lieutenants. They are considered supreme assets.
KEYWORDS:- Sexual offences, modesty and unnatural offences, Commission of offences.
INTRODUCTION:- The POCSO Act, of 2012 was enacted when the cases of sexual abuse against children were rising. It contains provisions regarding the protection of children from sexual abuse, sexual assault and pornography and lays down the procedure for the implementation of these laws. Therefore, the act has been instrumental in providing a robust justice mechanism for the victims of sexual abuse and has highlighted the significance of child rights and safety. The reporting of cases of child sexual abuse has also surged as a consequence of awareness. The act covers the punishment for both non-penetrative sexual assault and aggravated penetrative assault.
A. CHILD SEXUAL ABUSE:
1. PENETRATIVE SEXUAL ASSAULT: Section 3 of the POCSO Act defines penetrative sexual assault and section 4 lays down the punishment which was made stringent by the 2019 amendment. In the case of panel Gupta vs State of Sikkhim 2015, the victim age 15 years stayed with the accused and injuries were found in her genital area. The High Court relied on the statement of the accused that the accused opened her clothes and raped her five times in one night. The contention of the accused that he was not aware of the victim being a minor was not accepted and the accused was prosecuted under section 3 of the POCSO Act.
2. AGGRAVATED PENETRATIVE SEXUAL ASSAULT: Section 5 of the POCSO Act lays down the cases in which penetrative sexual assault amounts to aggravated penetrative sexual assault. For instance, penetrative sexual assaults on a child by a police officer within the vicinity of a police station by armed forces within the limits of their area, by a public servant,by the staff of jails, hospitals or educational institutions are considered aggravated penetrative sexual assault and are punishable under section 6 of the POCSO Act.
3. AGGRAVATED SEXUAL ASSAULT: Sections 9 and 10 of the POCSO Act contain provisions regarding aggravated sexual assault on a child. In the mentioned case of Zofran vs state(2020), the accused who was a plant operator in the swimming pool area was convicted by the Trial Court under section 10 of the POCSO Act and section 354 of the Indian Penal Code,1860 for having sexually assaulted a girl of 8 years old. The facts of the case are that when the victim was wearing her swimming costume in the changing room area, the accused approached her inserted his hand in her swimming costume and touched her with sexual intent. The Delhi High Court rejected the argument of the accused that he was implicated falsely and the conviction was upheld.
B. TRAIL OF OFFENCES UNDER POCSO ACT:
The POCSO Act specifies the provisions regarding the trial of a reported offence under sections 33 to 38. Following are some glaring features provided under the POCSO Act as under:
1. DEPOSITION OF VICTIM: Section 33 specifies that the Special Court can take cognizance of the offence without the accused being committed to the trial. Section 36 mentions that a child should not be exposed to the accused at the time of giving evidence but this provision was not followed in the case of Vasudev vs The state of Karnataka. The deposition sheet reflected that the victim was aggressively questioned
and only when she had got emotional while narrating the incident, the accused was sent out. The Karnataka High Court dismissed the appeal of the accused who was convicted under section 4 of the POCSO Act.
2. MEDICAL AND FORENSIC EVIDENCE: based on Child sexual abuse is rarely diagnosed merely on the basis of physical examination.In many instances,the scars or bruises on the body of victim are not found either because the cases are not immediately reported or the sexual abuse does not result in such injuries.
3.DUTIES OF MEDICAL EXAMINER: It is essential that the medical examination of a child is conducted with utmost care and precaution. Rule 5(3) of the POCSO Rules,2012 makes the provision that no medical facility or practitioner who renders emergency medical care to a child should ask for any kind of legal or other documentation before providing such care. The medical examination of a child must be done. Apart from this, section 27 of the POCSO Act lays down certain laws regarding the conduct of medical examination i.e the medical examination is conducted according to the provisions of section 164-A of the criminal procedure code,1973, and the medical examination should be conducted in the presence of a person in whom the child has trust, a medical examination of a girl is to be conducted by a woman practitioner.
4.ADMISSIBILITY OF THE MEDICAL HISTORY OF VICTIM: The medical history of the victim is not given much importance by the Indian Judiciary.In the case of Gangadhar Sethy vs State of Orissa (2015),the doctor did not find any injury marks on the body of the victim but stated that based on her medical history, there is a possibility of an attempt to sexual assault cannot be ruled out. On the other hand, the Orissa High Court paid no emphasis on the medical history and held that one cannot interpret what the victim meant by the term assault.
C. JUDICIAL PRONOUNCEMENTS UNDER POCSO ACT:-
DINESH KUMAR MAURYA VS THE STATE OF U.P (2016):
This case throws light on the intricacies of the medical evidence of the victim. The Allahabad High Court in this case set aside the conviction of the accused under sections 3 and 4 of the POCSO Act as there were no marks of injury on the body of the victim who was 14 years old but the victim had stated that there was forcible sexual intercourse.The Court has made the following observations in this case:
-The injuries on the body are not always sine qua non for proving the
offence of sexual assault but if the victim states that she has been
helplessly raped then the marks of injury on the thighs, breasts, face of the
the body can immensely support her statements.
VISHNU KUMAR VS STATE OF CHHATTISGARH (2017):
The Court observed that section 36 of the POCSO Act did not comply with its
letter and the spirit while deciding the appeal of the accused. Therefore,some guidelines were issued by the Court to all judicial officers of the state: The Presiding officer must make the child witness as comfortable as possible. Along with the in-camera proceedings, the Presiding officer should come down from the dais and engage in conservation with the child.
The strict rules of evidence can be ignored to search for the
truth as justice should prevail. A child normally tells the truth but as they are dependent beings their statements might get influenced by other people so it is the rule of prudence and caution that the statements of the child are to be scrutinized.
BIJOY VS THE STATE OF WEST BENGAL:-
In this case, the accused was convicted of committing sexual assault and the Calcutta High Court laid down some directives which are to be followed by the investigating
agencies to protect the dignity of the child victim. There are following directions:
The police officer has to register an FIR, the child should be immediately sent for medical examination under section 27 of the POCSO Act. In case the child falls within the definition of a child in need of care and protection, as defined under section 2(d) of the Juvenile Justice(Care and Protection of Children)Act,2000, the child is to be forwarded to jurisdictional WC.
SUNDERLAND VS THE STATE OF M.P AND ORS (2017):
This is an important judicial pronouncement where the father of the minor rape
victim filed a petition under Article 226 of the Constitution of India,1950 to get permission to terminate her pregnancy. The Madhya Pradesh High Court placed emphasis on the report according to which the length of the pregnancy was 20 weeks. Following are the directives issued by the High Court in this regard:
In the case of a minor, the consent of the petitioner is enough for the termination of pregnancy and it is not essential to obtain the consent of the minor victim. The right of termination of pregnancy flows from Article 21 of the Indian Constitution.
A committee constituted of 3 registered medical practitioners has to form an opinion regarding the termination of pregnancy in accordance with the Medical Termination of Pregnancy Act, of 1971.