Gita Mittal, Judge, Delhi High Court

Professor Ved Kumari, Faculty of Law, University of

DelhiDinesh Kumar Sharma, Director, Delhi Judicial Academy

Source: http://ncrb.gov.in/CD-CII2013/Chapters/6-Crime%20against%20Children.pdf1

Obligation of the State under Constitution and UN Convention on the Rights of the Child

• Article 15 (3) of the Constitution of India mandates the state to create special

laws for the Children• Article 39 , Directive Principles of State Policy mandates the state to

ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

• UN Convention on the Rights of the Child, 1989 requires the State to take measures to protect children from unlawful sexual activities and sexual exploitation to prostitution or pornography.

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POCSO: Need of the Hour

• Till 2012, there was no specific legislation governing child sexual abuse.

• Increasing incidents of Sexual offences against Children

• IPC recognised limited forms of Sexual Violence against children - Scattered provisions in Indian Penal Code (Sections 354, 509, 376, 377) and Immoral Traffic (Prevention) Act, 1956 (Sections 4 (1), 5 (d), 7) were applied in cases of child sexual abuse.

• Sexual offences other than Rape fell into the category of “Outraging the modesty of women” which was punishable with a maximum term of two years and/or fine.

• Sexual offences in the IPC are gender specific, except section 377. There was need for Gender neutral legislation.

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POCSO: Need of the Hour …

• To protect Children from the offences:

• Sexual Assault

• Sexual harassment

• Pornography• To safeguard Interest of Child:

• Child friendly mechanism for reporting

• Special procedures for investigation, medical examination, recording of evidence

• Speedy Trials through designated courts4

POCSO - Chapterisation

1. Preliminary2. Sexual Offences against Children3. Using Child for Pornographic Purposes and

Punishment thereof4. Abetment / Attempt to commit an offence5. Procedure for Reporting of Cases6. Procedure for Recording Statement of the Child7. Special Courts8. Procedure and Powers of Special Courts and

Recording of Evidence9. Miscellaneous

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Child and Vulnerable Witness

POCSO •Child - Any person below the age of 18 years

DHC Guidelines•Vulnerable Witness – is a child who has not completed 18 years of age

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A Gender Neutral Act

Unlike under the POCSO Act, sexual offences under the Indian

Penal Code are not gender neutral. Except for the offence of

trafficking, the perpetrator in all sexual offences under Indian

Penal Code is a male and the victim a female.

POCSO Act remedied this defect by providing for

gender neutral provisions vis-a-vis the perpetrator as well as the

victim could be either male or female

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Sexual Offences

• S.3 Penetrative Sexual Assault (Rape)• S.5 Aggravated Penetrative Sexual Assault• S.7 Sexual Assault• S.9 Aggravated Sexual Assault• S.11 Sexual Harassment• S.13 Child Pornography • S.16 Abetment to commit above• S.18 Attempt to commit above

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POCSO also identifies following as offences:

• Sexual assault (S.7)• Sexual harassment (S.11)• Use of child for pornographic purpose (S.13)• Storage of pornographic material involving a

child (S.15)

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Penetrative Sexual Assault• A Person• Penetrates penis / body

parts other than penis / objects,

• Manipulates the child’s body to cause penetration

• Applies mouth to the vagina, mouth, urethra or anus of a child

• Makes the child to do so

• with him or any other person

• Babita (just above 18 years old) had voluntary sexual intercourse with Arun (just u/18 Years old). Babita became pregnant. Arun’s teacher learnt about it and informed the police.

• Has Babita committed the offence of penetrative sexual offence?

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Penetrative Sexual Assault• A Person• Penetrates penis / body

parts other than penis / objects,

• Manipulates the child’s body to cause penetration

• Applies mouth to the vagina, mouth, urethra or anus of a child

• Makes the child to do so

• with him or any other person

• Babita (16 years old) was dating Arun (17 Years old) with the knowledge of their parents after being engaged to be married after finishing their studies. Babita missed her menstruation and her mother took her for check up. The doctor found her to be pregnant. He informed the police.

• Who is the offender and who is the victim?

• They should be produced before whom? 11

PENETRATIVE SEXUAL ASSAULT

Penetration by Penetration of

Penis Vagina Mouth Mouth Object Anus Body Part Urethra Penis

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Aggravated Penetrative Sexual Assault (S.5)

Based on ‘how’, ‘when’, ‘where’, ‘by whom’ and ‘what act’.•By Custodian (relative; management or staff of institution for children)•Situation of trust (police officer; armed force; public servant; management or staff of hospital, educational or religious institution)•In a gang•using deadly weapons, fire, heated substance or corrosive substance•Serious mental / physical incapacity

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Aggravated Penetrative Sexual Assault (S.5) …

• Attempt to murder• Pregnancy• Repeatedly • More vulnerable child• During riots (communal or sectarian violence)• Assault followed by attempt to murder child• Assault followed by stripping and parading

child naked in public.

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Aggravated Penetrative Sexual Assault …

• Penetrative sexual assault that result in a. grievous hurt or bodily harm and injury to any part of the

body of the childb. physical incapacitation, mental illness or

temporary/permanent impairments because of the assaultc. pregnancyd. HIV or any other dangerous infection or disease

•Penetrative sexual assault on a. child with disabilityb. child below 12 years of agec. a child, with the knowledge that she is already pregnant

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Protective Procedure – Ss.33-38

04/21/23 16

Procedure – s.33

A child was raped by her father. Father’s picture is published in the newspaper.Has the newspaper violated the law?

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What is the offence, if any?

• Sarita 17 years old, was travelling from Rishikesh to Delhi alone. She befriended, Suresh and Karan, two boys her age on the bus who were also going to Delhi. Their bus failed midway and all passengers had to find accommodation for overnight stay. These three could find only one room with difficulty. They decided to share the room as the boys said that Sarita can sleep on the cot and they will sleep on the couches. At mid-night, Karan put his fingers in her vagina and Suresh had sexual intercourse with her without her consent.,

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Special Personnel• Special Court / Children Court• Jurisdiction to try offences u/Information

Technology Act, 2000• Cognisance without committal • Special Public Prosecutor• Facilitators• Guardian at litem• Support person• Translators• Experts

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Punishments

• Aggravated – minimum 10 years /life; + fine• Penetrative Sexual Assault – minimum 7 year /

life; + fine• Sexual Assault – minimum 3 years / may be

five years; + fine• Pornography – up to 5 years + fine• Subsequent offences –up to seven years + fine• Pornography as well as other sexual offences – life +

fine

• Sexual Assault – up to 3 years + fine

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Punishments - Comparison

IPC prior to 2013 IPC 2013

• Rape – MM 7 Yrs – 10 yrs + fine

• Aggravated – MM10 yrs – life +fine

• Less than MM for Spl reasons but not less than 5 yrs

• Rape – 7 yrs + fine

• Aggravated – MM10 yrs – rest of life

• Gang – 20 yrs – rest of life + fine – just and fair to meet med expenses and paid to victim

POCSO 2012

• Rape – MM 7 Yrs – life + fine

• Aggravated – MM10 yrs – life + fine

Pre- 1983 – Punishment for Rape – upto 7 years RI, life + fine

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Criminal Law Amend Act 2013

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Rajesh Sharma v. StateCri Appeal No. 535/2006 DoJ: 04.01.2012 (DHC)

13. However, in the present case, what makes this heinous crime even more shocking is the fact that the person accused of raping an innocent 11 year old girl is none other than her own father.

15. In view of the above judgments and looking to the circumstances, specially to the fact that the victim is the daughter of the accused himself, I am not inclined to reduce the sentence in any manner.

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DHC Guidelines re Vulnerable Witnesses

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Balancing

• Protecting the rights of the accused • Ensuring best evidence by witnesses

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In POCSO

• Recording statement of the child• By police• By court

• Child not to see / come in contact with accused• Police officer not to be in uniform• Appointment of guardian et litem• Support person• Facilitators / translators• In camera proceedings

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Procedure and Powers

• Questions by PP / Defence counsel to be given to the judge

• Judge alone to put questions to child• Frequent breaks if needed• Child friendly atmosphere – friend of child• Not called frequently• No aggressive questioning or character

assassination• Non-disclosure of identity• Compensation to victim

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Proactive measures

• Pre-trial court visit• Evidence of child from either side• Explain court procedure

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Some Problematic AreasCompulsory Reporting (Sec.19)

To

(a) the Special Juvenile Police Unit; or

(b) the local police

By anyone who

• apprehends that an offence under this Act is likely to be committed

• has knowledge that such an offence has been committed

• comes across any material or object which is sexually exploitative of the child (including pornographic, sexually-related or making obscene representation of a child or children) through the use of any medium

Notwithstanding anything contained in the Code of Criminal Procedure, 1973

• Punishment for non-reporting – six months of imprisonment30

Professional dilemma

• A mother took her daughter (19 years old) to the psychiatrist as the daughter was having trouble concentrating on her studies

• The psychiatrist stumbled on her sexual abuse when she was 17 years old.

• Should the psychiatrist report?• What would be the appropriate order if he is

being prosecuted for non-reporting?

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A sexual offence against a child is revealed/ disclosed to :

• close relative• teacher• mediator• family court• civil court (say, in a maintenance suit)• criminal court (say, in a S.125 Cr.PC action or

a trial u/s 498A IPC)

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Presumption of commission of offence u/S.3, 5, 7, 9

• S. 29• … the special court shall presume • that such person has committed or abetted or

attempted to commit the offence , as the case may be,

• unless the contrary is proved

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Presumption of culpable mental state

• S. 30 • If the offence requires a culpable mental state• The courts shall presume such mental state• Burden to prove otherwise on the defence• The standard of this proof is beyond reasonable

doubt and not preponderance of probability

Explanation: “Culpable mental state” includes intention, motive, knowledge of a fact, and belief in or reason to believe a fact

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Punishment for false complaint or false information by

• Child u/ 16 years – nil action• Child above 16 – refer to JJB• Others – 1 year imprisonment / fine / both

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•Both the boy and the girl are below 18 years of age. They have entered into sexual activities with their "consent“. Are they victims required to be referred to the CWC or they are to be treated as juveniles and produced before the JJB?

•Consensual sexual activity with a wife below the age of 18 years would be an offence under POCSO.

However, as per the Exception 2 to Section 375 IPC, sexual intercourse with wife above 15 years is not an offence under the IPC.

How are these children to be dealt with?

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Problem area

Section 42 of POCSO providing for alternative punishment states that if any act is punishable under POCSO or under any other law, the punishment which is greater in degree should be awarded.

If a person is tried for sexual intercourse with a wife between 15 to 18 years of age, what would be the punishment awarded to him?

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Compensation and rehabilitation

• The IPC did not have any provision for rehabilitation. Girls also have not been imposed either a heavy fine or awarded compensation under Section 357 of the CrPC.

• In POCSO offences, there would be huge medical expenses as well which have to be accounted for.

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The Times of India: 03/31/2015

• A five year old girl was operated upon for three hours on Monday after she was mauled by a 32 year old man in a vicious sexual assault in Gurgaon on Sunday night.

• “She was bleeding and crying and I thought she would die,“ her father said.

• “Her anus and vagina were severely damaged and she bled profusely ,“ her grandfather said. “

• Sources said the girl might need to undergo plastic surgery because of the extent of damage to the internal linings of her private parts.

• Police suspect he intended to kill the child.39

Problem Areas

Additional issues may arise on account of :• Abetment of offence (S. 16)• Punishment for non-reporting (S. 21)• Onus of proof (S. 31)

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Some questions which may arise …

• A young man aged 19 years old (or older) is produced before you for commission of rape at the age of 17 years

• A 20 year old woman is produced before you as witness before you being the victim of rape at the age of 17 years

• A 17 year old boy is produced before you for allegedly committing murder

Are they covered under POCSO?41

Questions which could arise

• Would the definition of child (any person) includes transgender as well.

• Medical examination of a child – not offence but problematic.

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How this to be treated?

• There is an affair between 17 years old boy and 21 years old girl. They entered into sexual relations and the girl gets pregnant as a result.What is the status of the boy or the girl? Who is the victim and who is the offender?

• More and more persons between 16 to 18 years are sexually active or indulging in experimentation. How is their sexual activity to be treated?

• As society becomes more permissive, there are growing elements of touching in daily behavior of young persons. Would holding hands by two young persons be treated as an offence under POCSO?(Statistics reveal that ‘Romeo Juliet cases’ are only 40% and 60% are actual POCSO offences)

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Key Features of POCSO, 2012

• The definition of sexual offences is broad and not restricted to rape. The Act protects children of both sexes from offences of sexual assault, sexual harassment, and pornography.

• POCSO Act ensures effective access to justice as it establishes of special procedure for reporting of cases, medical examination, investigation, recording statement of a child, and Special Courts for the trial of such offences.

• POCSO Act makes abetment of, and attempt to commit an offence under the POCSO Act punishable.

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Procedure under POCSO

The framers of the Act were conscious of the fact that children are vulnerable and

cannot be exposed to the regular court procedure. Whole effort underlines the procedure

to put the children at ease and to protect their dignity and confidence to elucidate

true and complete facts to serve the ends of justice. An effort to incorporate the child

friendly procedure suggested in ‘Sakshi v. Union of India’ was done for the first time.

Some of the provisions are as follows :

• The Special Court can take up the case directly without it having been committed to it by the Magistrate Court.

• Questions to the child have to be put by the judge during the hearing on evidence

• The child has to be given frequent breaks during the Recording of evidence

• Video conferencing, curtains or one way mirror can be used to prevent the child from seeing the accused while child’s evidence is being recorded

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Procedure under POCSO …

• The child must be questioned in a child friendly manner

• The court has to ensure that child is not called repeatedly to testify in Court

• Child’s identity has to be protected throughout the proceedings

• The trial has to be held in camera

It is noteworthy to mention that the High Court of Delhi was already a step ahead by

laying down the “Guidelines for recording of evidence of vulnerable witnesses”.

Also in the celebrated case of “Virender v. State of NCT of Delhi”, High Court

of Delhi had already standardized the procedure to be followed while dealing with

child victims/witnesses. The above two efforts of the High Court of Delhi were

along the lines of the procedure which were later incorporated in POCSO.

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THANK YOU

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