POCSO Act, 2012- Some leading cases

Bijoy v. The State of West Bengal (2017)

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. Following are some of the important directions:

• The police officer has to register the FIR as per Section 19 of the POCSO Act. Also, they have to inform the victim and their parents about their right to legal aid and representation.
• After the registration of the 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 ‘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 CWC.
• The identity of the victim is not to be disclosed in any media.
• Further, the Court issued some guidelines regarding the compensation to the victims. Some important points are as follows:

Compensation under Section 33(8) of the POCSO Act can be awarded by the Special Court at the interim stage.

1. The compensation at the interim stage is independent of compensation to be paid by the convict upon conviction.
2. The objective behind providing compensation is the relief and rehabilitation of the child victim and the reparation to the victim when the State has failed to protect the individual from crimes.

Vishnu Kumar v. State of Chhattisgarh (2017)

The Chhattisgarh High Court observed that Section 36 of the POCSO Act was not complied with in its letter and spirit while deciding the appeal of the accused. Therefore, some guidelines were issued by the Court to all the judicial officers of the state:

1. 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 conversation with the child. He/ she can also offer toys and sweets to the child witness as the child must not feel that he/ she is in a majestic place.
2. The strict rules of evidence can be ignored in order to search for the truth as justice should prevail.
3. The Court should ensure the child’s safety and the statement of the child can be recorded after 3-4 hours or the next day if necessary as the prime motive should be to make the child comfortable and record the statements free of any influence.
4. A child normally tells the truth but as they are dependent beings so their statements might get influenced by other people so it is the rule of prudence and caution that the statements of a child are to be scrutinized carefully.

Dinesh Kumar Maurya v. State of U.P. (2016)

This case throws light upon 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 of old but the victim had stated that there was forcible sexual intercourse. The Court 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, wrists or any other part of the body can immensely support her statements.

The Courts should always take into consideration the fact that false charges of rape or sexual assault are common and the parents in order to take revenge convince their minor daughters to tell lies and concoct stories.

Sunderlal v. 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 paid emphasis on the report according to which the length of the pregnancy was 20 weeks. Following directives were issued by the High Court in this regard:

1. 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.
2. The right to termination of pregnancy flows from Article 21 of the Indian Constitution.
3. 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, 1971.
4. If the Committee gives permission to terminate the pregnancy, then all the services and assistance are to be provided to the victim by the Respondent i.e. State.
5. In case of termination of the pregnancy, the DNA sample of the foetus is to be kept in a sealed cover in accordance with the procedure.

M. Loganathan v. State (2016)

The offence of rape was committed on 28.09.2012 i.e., before the Act was enforced. But the trial court convicted the accused under Section 4 of the POCSO Act. Consequently, the High Court of Madras declared that conviction being violative of Article 20(1) of the Constitution of India, 1950 was unconstitutional and it was modified to punishment under Section 376(1) of the Indian Penal Code, 1860.

Kanha v. State of Maharashtra (2017)

The accused was convicted under Section 376 of the Indian Penal Code and Section 6 of the POCSO Act for having committed aggravated penetrative sexual assault upon the victim which resulted in her pregnancy. The accused contended that unless there is proof of age of foetus, the date of the commission of offence was not in proximity with 14.11.2012 and thus, he cannot be prosecuted under Section 6 of the POCSO Act. The High Court of Bombay accepted the argument and acquitted the accused of all the charges. Therefore, it is apparent that when the applicability of the POCSO Act is questioned, the courts either alter the conviction of the accused or acquit them.

Bijoy @ Guddu Das v. The State of West Bengal (2017)

The Calcutta High Court reiterated the law made under Section 23 and declared that any person including a police officer shall be prosecuted if he/ she commits such a breach i.e. breach of confidentiality.

State of Gujarat v. Anirudhsing and Another (1997)

The Supreme Court had observed that it is the duty of every citizen to aid and cooperate with the investigative agencies and give information regarding the commission of cognizable offences. In various instances, schools and teachers help the child victims by reporting the sexual abuse cases to the authorities. For example, in the case of Nar Bahadur v. State of Sikkim (2016), teachers received information that her student is pregnant due to repeated sexual assualts on her by an elderly accused. The teachers informed the panchayat who lodged an FIR in the police station.

Shankar Kisanrao Khade v. State of Maharashtra (2013)

This is an important case where the Supreme Court laid down guidelines regarding reporting the offence. In this case, rape was committed on an 11-year-old child with moderate intellectual disability but it was neither reported to the police nor to the juvenile justice board. The Court observed that children with intellectual disabilities are more vulnerable and therefore, the institutions which house them have the responsibility to report sexual abuse incidents against them. Furthermore, it was laid down that non-reporting of crime in accordance with the provisions of the POCSO Act is a serious offence.

Pranil Gupta v. State of Sikkim (2015)

The victim aged 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 5 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.

Sofyan v. State (2017)

The accused who was a plant operator in the swimming pool area was convicted by the Trial Court under Section 10 of the POCSO 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 and 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.

Fatima A.S. v. State of Kerala (2020)

In a video on social media, a mother was seen being painted her naked body above the navel by her two minor children and she alleged that the motive of the video was to teach sex education to them. The Supreme Court of India observed in this case that, “in the initial years, what the child learns from their mother will always have a lasting impression on their mind. It is usually said that the mother will be the window of the child’s to the world”. Hence the same was covered under Section 13.

Vasudev v. The State of Karnataka (2018)

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.

Shubham Vilas Tayade v. The State of Maharashtra (2018)

The Special Court allowed the prosecution for recording evidence after 30 days of taking cognizance. This order was challenged by the accused, being violative of Section 35 of the POCSO Act. However, the high court agreed with the counterargument of the APP that as the accused did not challenge the application of the prosecution so he cannot challenge the order. Furthermore, it was observed that even otherwise, the Special Court can record evidence after 30 days and the only rider provided by Section 35 is that the reasons for the delay have to be recorded.

Imran Shamim Khan v. State of Maharashtra (2019)

A child told her grandmother that she was sexually abused and her medical examination confirmed this. However, her mother told her to ignore it. The statements of the child victim and her grandmother were recorded before the magistrate. The Bombay High Court made an important observation in this case by stating that, “even if a minor in a sexual assault case turns hostile under the POCSO Act, the onus is on the accused to establish the innocence. It is easy to say that the prosecution failed to prove the guilt of the accused. But in a case like this, the judicial approach has to see justice is imparted to the victim too”.