The special court set up under the Protection of Children from Sexual Offences Act (POCSOA) convicted the man on April 12 for sexually assaulting his minor daughter under the Indian Penal Code and the POCSO. Observing that a father is a “fortress and trustee” of his daughter, a special court here has convicted a 40-year-old man while rejecting the defence’s argument that there was no “skin-to-skin” touch.
The complaint stated that, in 2019, the victim’s teacher had alerted her about the victim behaving weirdly in school. When the complainant questioned her daughter, she revealed that the father had touched her private part. In its order, the court refused to accept this argument and noted that the victim stuck to her version throughout the trial that the accused had touched her private part.
“I am astonished by such arguments because even the provision/definition of sexual assault given under Section 7 of the POCSOA does not specify how the assailant should touch the private part of the victim and what amounts to an offence if the victim is assaulted by the assailant,” the court said.
The court further said that the accused in the present case was the father of the victim and hence the plea of mercy made by him to show leniency was misplaced and would be a “travesty of justice”.
2012 onwards Child are protected under Special Act from Sexual Violence: Child is also victim of crime and it is also important to protect these vulnerable flowers. The POCSO Act was enacted in the year 2012 and the good part is that it is gender neutral law. This means it recognises that boys can be victims of sexual violence as well. The law defines a child as someone under the age of 18. The Indian Penal Code does not recognise that sexual assault can be committed on boys. The POCSO Act, 2012 came into force with effect from November 14, 2012, along with the Rules framed thereafter.
Offence under POSCO: The Act gives much needed relief to protect child vulnerability. It recognises sexual harassment of a child which involves touch (sections 11 and 12), stalking, making a child expose themselves or exposing themselves to a child, and so on.So, it is also important for parent, schools to empower children to report such incidence.The POCSO Act also specifically lays down stringent punishment for exposing children to, or using them to create child sexual abuse material under sections 13, 14, and 15. In the year 2019, the POCSO Act was amended when the minimum punishment for aggravated and penetrative sexual assault on children below 16 years was increased from 10 to 20 years, and extendable to life imprisonment or death.
Inverted legal maxim: This child protection law is also unique because it places the burden of proof on the accused, following ‘guilty until proven innocent’ unlike the IPC.
The law has been legislated safeguarding the interests of the child at every stage of the judicial process by introducing a child-friendly mechanism for reporting, recording of evidence, investigation and speedy trial of offences through special courts.
Who is Child under POSCO? This law defines a child as any person below the age of 18 years. .
Reporting of offence mandatory: It is also mandatory to report the obligation imposed under Section 19.
New Rules
- Any children housing institution or coming in regular contact with them is required to conduct a periodic police verification and a thorough background check of each employee who interacts with a child.
- An institution must give special regular training in order to sensitise its employees on child safety and their protection.
- More importantly, it has to adopt a child protection policy that is based on the principle of zero tolerance to violence against children.
Comfort of Child in reporting incident to authorities ensured by law: Under provisions of the POCSO Act, a child is entitled to the following:
- Statement recording: Getting their statement recorded at their residence or a place of their choice, and preferably by a woman police official or an official not below the sub-inspector rank, in civilian clothes.
- No direct contact with accused: The police official should ensure that during the investigation, the child shouldn’t come in contact with the accused.
- Protection of child identity: The child cannot be detained at the police station at night, and his/her identity should be protected from the public and media unless directed otherwise by a Special Court.
- Medical examination: If the survivor is a girl, the medical examination should be done by a woman doctor, and the examination can only be done in the presence of a parent, or a person the child trusts. If neither of the two are there, then the examination should be done in the presence of a woman nominated by the head of the medical institution.
- Child friendly court atmosphere: The special courts stipulated under the POCSO Act are also to be child friendly. There are provisions such as making a child-friendly atmosphere in the court premises by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present; allowing frequent breaks for the child during the trial; and ensuring that the child does not have to face the accused during evidence collection as well as cross examination.
Implications of POSCO in force: Sections of the POCSO Act may be added by the police in the First Information Report (FIR) whenever a sexual offence is committed against a child. While special laws override the IPC, sections of both are often mentioned in the FIR. For instance, an FIR would book an accused under section 376 (rape) of the IPC as well as relevant sections of the POCSO Act. Punishments under POCSO are more stringent than under IPC.
The ghost of skin to skin argument still survives is surprise after last year the Hon’ble Supreme Court had questioned the interpretation of touch during the hearings of skin to skin judgment appeal. The apex court said “What does touch mean, simply a touch? Even if you’re wearing a piece of clothing, they’re not trying to touch clothing. We must see touch in the meaning that Parliament intended,” the Court noted.
“A father is a fortress and trustee of his daughter. This crime, therefore, becomes more grievous. In the present case, I do not find extenuating or mitigating circumstances on record to justify the imposition of a lesser punishment than prescribed by law,” the special judge said.
