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A Brief Study On Crime Against Children In Light of POCSO ACT

The (POCSO) was passed in the year 2012. For the first time Protection of children from sexual offenses Acte a special law has been passed to address the issue of sexual offences against the children . The Act accords protection to minor( under the age of 18 ) against sexual assault, sexual harassment, pornography, and establish special courts with child friendly procedure.

The POCSO Act( 2019) Amendment seeks to provide for rigid punishment to those engaging in sexual crimes against children, death penalty in cases of aggravated sexual assault, besides imposing fines and imprisonment.

Definition of child sexual abuse is comprehensive and encompasses the following:
  1. penetrative sexual assault,
  2. aggravated penetrative sexual assault,
  3. sexual assault,
  4. aggravated sexual assault,
  5. sexual harassment,
  6. using child for pornographic purpose, and
  7. trafficking of children for sexual purposes.

The above offences are treated as "aggravated", when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-�-vis the child. The Act prescribes stringent punishment graded as per the gravity of the offence, imprisonment for life, and fine. The purpose of this paper is to find the legal statutes, loopholes, subordinate legislations and aim at finding the inconsistency and certainty of law.

The paper will cover the background of POCSO Act, salient features, offenses and punishment , Loopholes, Amendment , prominent cases and judgements, suggestion and recommendation, and conclusion of this project.

Background of POCSO Act:
The protection of children from Sexual Offences Act (POCSO) Came into force on November 14, 2012 and was specifically formulated to deal with offences including child sexual abuse and child pornography. The Act through its 46 provisions increased the scope of reporting offences against children, which was earlier covered under the Indian Penal Code (IPC).

This expanded the criminal penalty for aggravated penetrative Sexual assault to include punishment for abuse by a person in position of trust or authority including public servants, police, armed forces, and management or staff of an educational or religious institution.

The POCSO Act defines offences of sexual assault, sexual harassment, pornography and safeguarding the interest and well-being of children.

The aim of the act is to provide protection of the children at every stages of judicial process.

Salient features of this Act:
  • The POCSO Act is a gender neutral - it recognizes that boys can be victims of sexual violence as Well. It defines a child as someone who is under the age of 18 yrs
  • This law also recognizes sexual harassment of a child which involves touch and also that which doesn't (sections 11 and section 12) such as stalking, making a child expose themselves.
  • Another hallmark of the POCSO Act was that it set up procedures to make a child friendly. The procedure will include all such statements of the child that has to be recorded, from the medical examination to the designation of special child friendly courts.
  • Only Female doctors can collect forensic evidence from a minor in a medico- legal case in   the presence of a person of trust.
  • The court must make arrangements for the presence of an interpreter, translator, special educator, social worker, or any other expert in the courtroom for the minor's assistance.
  • Compensation must be provided to the minor for medical treatment and rehabilitation in case of sexual abuse.
Offences and punishment covered under POCSO Act (2012):
  1. Penetrative Sexual Assault (Section 3):
    It punishes the person with imprisonment of not less than 10 years which may lead to imprisonment for life. Penetrative assault on a child below 16 years shall be punished with imprisonment for a term not less than 20 years, however, it can extend to imprisonment for life.
  2. Aggravated Penetrative Sexual Assault (section 5):
    It punishes the person with imprisonment of not less than 10 years which may extend to imprisonment for life and also liable to fine. (Section 6)
  3. Sexual Assault (Section 7):
    It punishes the person with imprisonment of not less than 10 years which extend to 5 years and fine (Section 8).
  4. Aggravated Sexual Assault (section 9):
    It punishes the person with imprisonment of not less than years which may extend to 7 years and fine (Section 10).
  5. Sexual harassment of the Child (Section 11):
    Almost three years of imprisonment and fine (Section 12).
  6. Use of Child for Pornographic Purposes (section 13):
    A Person who store pornography material in any form involving a child, but doesn't delete or destroy or report the same to be designated authority, with an intension to share or transmit child pornography: fine of not 1less than R s. - 5000 and fine of not less than R s. - 10,000 in the event of second of subsequent offence.2

Loopholes Of This Act:
  1.  Gender Biased:
    "Childhood is a promise that is never kept", Said by ken Hill. Child sexual Abuse has reached a critical situation in India. Several provisions under the POCSO Act is a clear indication of the gender biased, Similar to the law of rape under the IPC. The more use word boy, or a pronoun 'He' which indicate that the man is booked for the offenses under the relevant provisions of the POCSO Act.
    Though, the victim can be any child irrespective of the gender, the accused still can only be a male, females are again given a protective shield, for reasons unknown. Saying that females does not subject children to forceful sexual assault would be untrue. Incidents of such child sexual victimization by females has been observed and witnessed. This might come as an eye opener but child sexual abuse is at least 10% more among boys than girls.

    "Parents are not as careful about their male child as they are about their girl child". The psych-social setup completely sidelines the protection of boys and 'virginity' is always associated with girls only. As must as parents take pains to teach their daughters that they could be sexually abused and molested, the boy child is never informed. The concept of child abuse id highly gender-biased. Only the girl child is focused upon, as she is the key reproductive individual.

    "It is also being assumed that a girl child is unsafe, they think of the consequence, which is that girl may be pregnant, while a boy won't. "This indicates the mindset of people who are more afraid of the social tag rather than the individual being sexually abused.
  2. Medical Examination:
    Sec 27(2) of the POCSO Act mandate that in case of a female child victim, the medical inspection should be done by a female doctor. However, the law mandates the available medical officer to provide emergency medical care. On the other hand, the criminal law (Amendment) Act, 2012, section 166 IPC, Mandates the government medical officer on duty to examine the rape victim without he fail. The conflicting legal position creeps in when a female doctor is not available.
  3. Consent sexual intimacy:
    Sexual contact between two adolescents or between an adolescent and an adult are considered illegal under the POCSO Act, moreover the recent amendment to the IPC increasing the age of consent from 16 to 18, thereby coloring all the sexual Act under that age as rape, irrespective of consent, will only prove as sparking as fire. Also a serious repercussion is that gynecologists need to report all the medical termination of pregnancy cases i.e. MTP cases performed on children (individual below 18 years), as per the medical termination of pregnancy.
  4. Child Marriage:
    Child marriage and consummation of the same are considered illegal for the purposes of POCSO Act. In India, even though child marriage child marriage is prohibited under the secular laws, thereby creating a deadlock between secular laws and personal laws. The definition of "child" as per section 2(d) includes any person below the age of 18 .Age is the only criteria under POCSO. Section 4 and 6 punish the offenders for having such sexual intercourse is punishable.

    According to the personal laws, marriage being the only means of legalizing sexual intercourse between two individuals, such physical relations between a husband and a wife who have not attained � Majority according to the Indian legal standard is perfectly valid as per the personal laws.

    But, the POCSO doesn't make any such exception and draws a uniform line solely on the ground of the age. The conflict between the two laws is likely to arise, wherein one allows 'child' being one determined on the basis of the certain age. Besides, the problem degrades by the presence of another conflicting law.
  5. Training:
    There is an urgent need to train medical professionals, teachers, advocates, and law enforcing agencies in the POCSO. Investigation, information, monitoring, and sensitizing the public are the biggest challenges. There is also an urgent need to train all the medical undergraduates and primary health care 2 doctors in providing child- friendly interview, planned assessment, collecting evidence, prophylaxis for sexually transmitted diseases (i.e. STDs) .
 Amendments in POCSO Act (2019):
Penetrative Sexual Assault:
  • If a person commits "penetrative sexual assault", the minimum punishment in such a cases has been increased from 7 years to 10 years.
  • If such a crime has been committed on a child below the age of 16 years, then the punishment will be between 20 years to life.
Aggravated Penetrative Sexual Assault:
It includes crime committed by a police office, armed forces, or a public servant. It also covers relative of a child. Also , if the assault injures the sexual organs of the child or the child becomes pregnant. The bill adds two more grounds Assault resulting in death of child Assault committed during natural calamity

All About protection of children from Sexual offences Rule, 2020:
The provisions of punishment for child abuse under POCSO Rules 2020 have been made more stringent. Some significant addition in the rules include provision of mandatory police verification of school and care home staff, procedures to report sexual abuse material such as pornography and imparting age. appropriate child rights education. The state governments have been asked to formulate a child protection policy based on the principle of "zero-tolerance" to violence against children.

In regard of child pornography, the rules state that any person who has received any pornographic material involving a child or any information regarding such pornographic material shall report 4 the contents to the special juvenile police unit (SJPU) or police, or the cybercrime portal.4

Case Analysis before POCSO Act:

Fact of the case:
A young girl below 16 years of age,was studying in the 10 th class, at that time there was a government high school, pakhowal. She was coming back to home after giving the examination. While she was on her way to home she was kidnapped by 3 men, forcefully she was put into the car and she was taken away Then , for the whole night she was raped and on the next morning these accused person left her on the same place from where she had been taken away.when she reached she didn't go back to her home.

The girl had to take her examination in hygiene, on that date. She after taking her examination in hygiene,reached her village Nangal-kalan, at about noon time and narrated the entire story to her mother, smt. Gurdev kaur, that she was raped.Her father trilok singh was not present in the home at that time.when her father retured to home , her mother narrated the incident to her husband Trilok Singh. Her father straightaway contacted the Sarpanch ,joginder singh of village.

Matter was brought to the notice of the Sarpanch of village Pakhowal also. Both the Sarpanches, tried to affect a compromise on 1st April 1984 but since the panchayat could not 5give justice to the girl, so she went with her father to the police station Raikot to lodge a report about the occurance to the police

When they reached the bus stand of village Pakhowal, the plice met them and she made the statement before ASI Raghubir chand who made an confirmation , and sendt the Statement of the girl to the police station for the registration of the report on basis of which format FIR was registered by SI Malkiat Singh.

ASI Raghubir Chand then took the girl and her mother to the primary health centre pakhowal for medical examination of the girl.she was medically examined by lady doctor DR. Sukhwinder Kaur on 2nd April 1984, Who find that the girl was teared with fine radiate tears, swollen and painful . Her pubic hair was found mated.
Anand A.S .(J), Ahmad Saghir S. (J)
During the course of investigation ,the police took into possession a sealed parcel hanged over by the lady doctor containing the salwar of the girl along with 5 slides of vaginal smears and one sealed bottle containing pubi hair of the girl.

On 5th April jagjit singh Bawa and Ranjit Singh were produced before the investigating officer by Gurbachan singh and jagjit singh for the medical examination. The report of the chemical examiner revealed that the semen was found on the slides of vaginal smear , though no spermatozoa was found either on the pubic hair or the salwarof the girl . on completion of the investigation , respondents were challenged and were charged for the offences under sections 363, 366,368,376 IPC.

Jagjit singh one of the accused stated that it was a false case foisted on him on account of his enmity with the Sarpanch of the village Pakhowal . He stated that he had married a Canadian girl in the village Gurdwara. Gurmit singh 2nd accused stated that he had been falsely implicated in the case on account of enmity between his father and Trilok singh , father of the girl.

He also stated that there was a long standing litigation going on between his father and the father of the girl and their family members were not even speaking with each other.
Jagjit Singh Bawa produced two people from is side for the defence and tendered in the evidence, a Photostat copy of his passport and copy of a certificate of his marriage with the Canadian girl. He also tendered into evidence photographs marked ' c' and 'D', evidencing his marriage with the Canadian girl. The other two accused however did not lead any defence evidence.

  • Whether the prosecution's story stands fortified by any cogent or reliable evidence or not and if there's any need for corroborating evidence to be brought in court as per The Evidence Act 1872?
  • The judge opined that according to the evidence act Corroborative evidence is not an essential component in every case of rape and is only as used as a guidance paradigm and not as substantiate law in judicial proceedings.
  • A prosecutrix of a sexual offense cannot be put on par with an accomplice and should remain as a victim of the crime (the evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness, if not more) The evidence act does not state that a victim's evidence cannot be accepted unless it is corroborated in material particulars and according to the same act it can be stated that the prosecutrix is a competent witness Under Section 118 and hence her evidence must receive the same credibility.

Additionally, extra care and caution must be provided to evaluate her evidence.

The bench stated that the court needs to be conscious of the fact that if it chooses to not rely on the testimony of the prosecutrix it can look for evidence that may lend testimony's assurance. The nature of this evidence, however, must depend on the necessary facts and prerequisites.

At the same time if the prosecutrix does not have a strong motive to falsely involve the person charged then the court must not hesitate in accepting her evidence.

Obiter Dicta:
There cannot be a dead uniformity in the rule of law and it is to be made flexible based on different facts and circumstances. Courts cannot cling to a fossil formula (in this case- insist upon corroboration of evidence) even if the court thinks that the victim is credible and trustworthy.
  • If the court is confident at the prosecutrix's evidence it must not ask for anything else and if the person is guilty of having committed the offense of rape, the victim will be given compensation.
  • The court needs to be very sensitive in cases involving sexual assault and the testimony of the victim must always be appreciated in the background.
  • The high courts will be advised to invariably hold the trial of rape cases in the camera, rather than in the open court as envisaged by Section 327(2) Cr. P.C. and would be required to ask the presiding officers to do so as well.
  • It is also advised that these kinds of cases will be tried by lady judges as much as possible so that the victim is granted the ease and can make her statement effectively. This will also enable courts to opine and effectively discharge their duties.
This case marks an important distinction with respect to the evidence needed and the credibility which needs to be given to rape victims. They shoulder a great responsibility while trying an accused on charges of rape and rightly so this court, aware of its burden delineated that courts often make the mistake of sitting through repeated inquiries about the incident from the victim.

The fact that it observed that this is often used to discredit a victim and harass and humiliate her is appreciated in the judgment and it acts as a stepping stone in the fight for women's rights.6

Case Analysis:
After the Amendment of POCSO Act:- Skin to skin contact.

Background of the case:
The culprit 39 year old Bandu Rade was accused of luring the 12 years old girl to his house on the excuse of giving her a guava , and pressing her beast and attempting to remove her salwar.

A case was filed against Ragde under the POCSO act . the sessions court convicted bandu Ragde under Section 8 of the POCSO act , and sentenced him to three years of jail.
The Nagpur bench of the Bombay high court reversed the decision of a sessions court of conviction under POCSO and 3 years of jail term.

- It reduced the sntenceand offence character,HC upheld the conviction under IPC Section 354 ( outroging he modesty of a woman) which carry a lesser mininmum sentence of one year.

The High court verdict
Justice pushpa garedwala of the Nagpur bench of the Bombay high court ,in a judgement passed on January 19 , held that there must be "skin to skin contact with sexual intention without penetration" for an act to be considered sexual assault.

In her verdict , the judge said " mere groping will not fell under the definition of sexual assault"the high court had said that since the man groped the child without removing her clothes, the offence cannot be termed as sexual offence of outraging a woman's modesty under section 354 of IPC. 5It had modified the order of a sessions court , which had sentenced a 39 year old man to three years of imprisonment for sexually assaulting a 12 year old girl.

According to POCSO act any act act with sexual intent which involves physical contact without penetration is sid to be sexual assault.
The present legislation for criminalizing sexual offences against children was a much- needed piece of legislation.sexual abuses on children are big blot on society at large as it stook's the
human consciousness of the society and retard the normal healthy growth of children. Chid sexual abuses is a multidimentional problem having legal, social,medical and psychological implications. While writing the paper,there are certain drawbacks in the laws which needs to be overviewed

Consent: if the child / adolescent refuses to undergo medical examination but the family member or investigating officer is insisting for the medical   examination, the POCSO Act is silent and does not give clear direction.

There is a urgent need to clarify the issue of consent in such cases. medical examination, however in case of female the medical examination is done by a female doctor, conflict arises due to absence of female doctors and the third one is the reporting which is well known that in case of sexual abuse it is not been reported so far. The fear among the people of re- victimization because of medical treatment, treatment cost   and most significantly the public issue which may arises ongoing process.

Though , The POCSO Act is an excellent piece in the legislation and must be explore throughout the country, not only in the inner-city area but  also to the pastoral area Also.

Written By: Aditi Raj End-Notes:
  • State of Punjab Vs. Gurmit Singh and Others, 16 January 1996 (1986 AIR 1393, 1996 SCC (2) 384)

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