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“The first time they tell, maybe the only time”
This article argues for introduction of mandatory minimums of punishments for sexual offences committed against children and outlines the need of legislative reforms that created specific sexual offences against children, and suggests that the criminal justice system needs a solution that roots out lingering stereotypes in order to properly acknowledge and remedy the harms to child victims, the group most vulnerable to sexual violence.
The abuse against children reached an alarming rate during the pandemic and the controversial judgements by Justice P.V. Ganediwala in sexual assault cases did not make it any better. The judgements have received severe criticism by child right activists, victims, psychiatrists etc.
The judge had overturned a conviction order in a judgment issued on January 14, after noting that there was nothing to support prosecution’s rape argument[1] and on 15 January, she held that the act of holding a minor’s hands or the zip of the accused’s pants open at the appropriate time does not constitute sexual harassment, as specified in Section 7 of the POCSO Act [2]and subsequently a third judgment was delivered on January 19 in which she ruled that the act of pressing the breast of a child aged 12 years without removing her top will not fall within the definition of ‘sexual assault’ under Section 7 of POCSO [3]
These instances are far off from creating a deterrent effect; instead they would dim the confidence of survivors in further reporting a crime. Many survivors and child right activists believe that groping is the first stage of an abuse [4]and the recent judgements of the court were neither appreciative nor informative about assault in general. Sometimes under the purview of intention or scope of the legislation, we forget the basic morale or principles of law.
Let’s first look into why POCSO must prevail over IPC and the importance of certain bright aspects of this legislation which might bring a closer justice to victim of an abuse for the crime committed against him/her.
- POCSO OVER IPC
In several cases[5], court had stated that taking advantage of the loneliness of the child outside the house and in absence of her mother, if the accused indulged in the nefarious act- considering the gravity of the offence whereby an innocent child of tender age was sexually assaulted in the aggravated form, the appellant deserves no leniency.
The Court at several instances punished the victim under the section 354 of IPC; outraging modesty of women if the act didn’t come under purview of sexual assault under POCSO act, but here the quantum of punishment might vary and victim might not get the justice that she might deserve. Sexual assault/molestation that outrages the modesty of a woman under S. 354 is punishable with imprisonment for a maximum of only two years. Whereas the punishment specified under section 8 of POCSO act is that it shall not be less than three years but which may extend to five years, and shall also be liable to fine.
The court[6] in some instances rightly pointed out that when “Special Enactment are guaranteed by the Parliament exhaustively as self-contained law to deal with the offences like sexual harassment, sexual assault , penetrative sexual assault against the children, except further major offences like Secs.376, 302 of IPC etc. The offender can be dealt with Secs.8 and 12 of POCSO Act, 2012, and there found to be no need for charging the offender independently under Sec.354 of IPC.
This implicitly explains the sections of POSCO can be used for offences like sexual assault instead of sections of IPC, barring the serious offences like section 376 or 302 of IPC
From bare perusal of Section 7 of the Act it is limpid that its scope is quite large and it also includes from touching of vagina to hand or any other part of the body of a female child. Indisputably, touching of vagina is graver than touching the breast of a female child. Similarly, touching the breast is graver than touching the waist of a female child. Similarly, touching the waist is graver than touching the arm of a female child. But unfortunately, the same minimum sentence i.e three years is provided for all above acts. Even no discretion has been given to Courts to impose fewer sentences than the period of three years in any circumstances. In other words, the legislature has considered that the same minimum sentence i.e. three years imprisonment should be awarded to the offender irrespective of the fact whether he has been held guilty for touching the more sensitive parts of a child. With regard to the quantum of punishment, the court opined that the legislature has ignored the gravity of offence while determining the quantum of sentence.
The antiquated provisions failed to address the sexual offences committed today. There is a need to tackle the stark discrepancy in the quantum of punishment. It still remained antiquated and failed to remedy the changing nature of sexual offences in India. The law was hopelessly deficient in dealing with a range of sexual crimes against minors such as groping and harassment, covered by weak and imprecise provisions.
POCSO was introduced after IPC and both the statutes have overlapping crimes mentioned. Often they tend to be in a clashing position due to similar connotations. Few roots are ignored in certain fundamental facets of the law and the jurisprudential side of the act. First of all, the POCSO Act is a gender-neutral law, and is victim-oriented law the damages sustained to the victims take greater significance. While Section 354 of IPC is female-oriented/inclined
- PRESUMPTIONS OF SEXUAL ASSAULT UNDER POCSO
The pair of presumptions under POCSO; Section 29 of the act which is basically a radical shift from “Presumption of Innocence” to “Presumption of Guilt” ,Whereas Section 30 of the act is a singular exception to fundamental rule that burden on Accused and lighter to prove only on preponderance of probability. The function of Presumption is often to “fill a gap” in evidence. It is to be used by Courts in the course of administration of justice to remove lacunae in the chain of direct evidence before it.
In Pocso the incorporation of presumptions and reverse burden rule indirectly gives a lenient view to the victim in bringing forth the case or dealing with it. The POCSO Act ensures –
- To take care of a child – who has limited capacities and capabilities of appreciation and understanding mental states of others and even of himself/herself.
- To lighten the burden and vulnerabilities of already vulnerable children.
- To ensure proper and smooth implementation of the Act, to achieve its object of protection of children.
Legally, the duty of the accused to rebut the presumption arises only after the prosecution has established the foundational facts of the offence alleged against the accused. The yardstick for evaluating the rebuttable evidence is limited to the sale of preponderance of probability.
Once the burden to rebut the presumption is discharged by the accused through effective cross examination or by adducing defence evidence or by the accused himself tendering oral evidence, what remains is the appreciation of the evidence let in. Though, it may appear that in the light of presumptions, the burden of proof oscillates between the prosecution and the accused, depending on the quality of evidence let in, in practice the process of adducing evidence in a POCSO case does not substantially differ from any other criminal trial.
Once the recording of prosecution evidence starts, the cross examination of the witnesses will have to be undertaken by the accused keeping in mind the duty of the accused to demolish the prosecution case by an effective cross examination and additionally to elicit facts to rebut the statutory presumptions that may arise from the evidence of prosecution witnesses. Practically, the duty of prosecution to establish the foundational facts and the duty of the accused to rebut presumptions arise, with the commencement of trial, progresses forward along with the trial and establishment of one extinguishes the other. To that extent, the presumptions and the duty to rebut presumptions are co-extensive.
If a person is charged and convicted under a special penal statute, namely the Protection of Children from Sexual Offences (POCSO) Act, 2012. It has been provided under Section 29 of the Act that when a person is prosecuted for committing any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume that such person has committed the said offence unless the contrary is proved. Section 30 further provides that if any prosecution under this Act requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state, though the accused can rebut such a presumption, by way of reasonable doubt and not by preponderance of probability.
For reverse onus it becomes more convenient and easy for the Prosecution to prove the basic fact that shifts the burden. In light of the difficulty of the Prosecution to enter private spaces like the home, and conduct investigations, the inconvenience of the Prosecution often becomes greater in criminal cases. For the sake of expediency and judicial economy, the lawmakers take this argument to reverse the burden.
In recent years, the use of so-called reverse onus clauses has increased exponentially, placing the burden of evidence in an unconventional way, especially placing such a burden on a person who is accused of wrongdoing rather than on the prosecution. Such laws are often considered appropriate because, otherwise, the prosecutor may find it exceedingly difficult to satisfy the burden required, often because the person accused of misconduct has greater access to relevant information in this respect. POCSO Act, is one such statute where the burden of proof of innocence is cast upon the accused making it more lenient in protecting sexually abused children.
The Court in Satya Pal v. State of Haryana[7] stated that the court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. In this case the court stated that in specific types of cases, the delay in lodging the First Information Report is a natural phenomenon. In the sense of eye evidence and other situations surrounding it, it is important to appreciate the medical evidence itself as part of the evidence.
In Lokesh vs State[8], The court stated that it is ordinarily of presumption that a child of tender age would not lie. The applicability of the presumption would necessarily depend, to a large extent, on the age of the child. No dividing line can be drawn in such cases; however, one may reasonably presume that a child of vulnerable age would be of an age at which, to questions spontaneously put to the child, the answer would ordinarily be the truth. As against this, the Court is also required to be alive to the fact that children are impressionable individuals, especially when they are younger in age, and are, therefore, more easily tutored.
The Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. [9]
Children can be inexperienced in narrating an event they have heard, but their evidence can be really important in convicting a criminal at the same time. The testimony against a defendant plays a critical role in a courtroom and witnesses are the main source of evidence, as opposed to inert records. The evidence provided by witness offers first-hand knowledge to every judicial entity about a case. If an individual is under the age of eighteen at the time of giving evidence, he/she would be treated as a child witness. Although the law does not explicitly categorize child witnesses, it may be interpreted that the individual should be able to understand the questions presented to them in order to be a reliable witness.
In legal cases, the testimony of a witness is considered a piece of valuable evidence. This presents, however, a question of admissibility, which was briefly set down by the Proof Act and eventually abridged by the decisions involved. Testimony would have an admissible meaning if those requirements are met, such as; A witness should be adequately knowledgeable, He/she is able to consider the issues posed, By knowing the same thing, he/she can obtain a logical response. The prima facie reading of the provision reflects that the court has the discretionary authority to determine the admissibility of the testimony of the witness. Does this raise a fruitful question as to whether a child can be considered a competent witness? As a rule of prudence, with scrutiny, the court must consider the testimony of a child witness.
Based on the evidence and conditions of each case, the court has considered and disregarded the testimony of child witnesses on multiple occasions. A question should be asked; whether it is possible to ignore a child’s testimony solely because of his/her age? It should also be remembered that it is not possible to accept the tender age of an infant, who is unable to form a discrete judgment and is inexperienced to comprehend an issue, as a credible witness. Observed that evidence of a child should be examined carefully and the court should find some corroboration for the same because the substantiation is more of a concept of practical wisdom than of law. However, in the United Kingdom, it is not needed to prove or disprove the evidence in the case of a child witness.
These various important judicial pronouncements bring forth more of a Victim oriented view to the POCSO statute especially aiming to bring justice to the abused children. The reverse burden rule; the sole testimony of a child; or the presumption that a child of tender age wouldn’t lie are key aspects to the code in bringing a neutral and positive approach to the POCSO Act.
While interpreting the provisions of the Act, it is important to remember the purpose of the Act, as well as the conditions in which trials under the Act are conducted today. The Act was brought into force to combat a widely prevalent evil of child abuse. That the State has to do its utmost to protect the rights of children is evident from its international obligations as well as its constitutional mandate. The presumption is an enabling provision for the same, and therefore, must be given effect as such.
The POCSO Act is a landmark statute that protects children’s best interests and well-being from all types of sexual crimes, including sexual abuse, sexual harassment, exploiting a child for pornographic purposes, and aiding and abetting such offences. All forms of sexual crimes and exploitation against children under the age of 18 are given a broad meaning in this act. As a supreme legislation, this act ensures safeguarding the best interest of the child at every stage of the judicial process such as giving validity to sole testimony of the child and the concept of reverse burden rule and ordinary presumptions that a child of tender age would not lie.
There is no doubt that the POCSO Act, 2012, being the landmark and supreme legislation of India, stands out as a comprehensive measure to safeguard the rights and best interests of the children, with a well-set holistic framework. It makes it mandatory for any citizen, but especially those working with children and young people in the education, social, religious, and health sectors, to report CSA (section 19). Failure to do so will result in legal sanctions such as imprisonment for up to six months and/or fines, all of which are meant to promote law-abiding behavior. The legislation is rather detailed and has some special features.
Perpetrators of sexual offences on innocent children are psychosocial deviants, who cannot lay any claim to leniency. The sexual predators of children are throwing this order of nature into violent disarray. The pain that is destined to endure is likely to last a lifetime. So the use of more humane ways to deal with victims and prohibit victimization of the child at the hands of the judicial system which might increase the reporting of such cases
[1] Jageshwar Wasudeo Kawle vs. State of Maharashtra
[2] Libnus vs. State of Maharashtra
[3] Satish Ragde vs. State of Maharashtra
[4] https://fit.thequint.com/let-us-talk-sex/bombay-hc-judgement-redefine-what-sexual-abuse-is-for-children#read-more#read-more/ (Last visited on 10th March 2021 at 7:00 PM)
[5] https://indiankanoon.org/doc/73532236/ (Last visited on 11th March 2021 at 7:00 PM)
[6] https://indiankanoon.org/doc/168547484/ (Last visited on 12th March 2021 at 10:00 PM)
[7] AIR 2009 SC 2190,
[8] https://indiankanoon.org/doc/109840236/ (Last visited on 17th March 2021 at 8:00 AM)
[9] State of Maharashtra vs. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550
Author: MOVVA UMA UTKARSHA
Editor: Kanishka Vaish, Senior Editor, LexLife India.
Lexlife India 