Protection of Children from Sexual Offences Act, 2012Sections 4, 6, 29 and 30 - Presumption under the POCSO Act – Applicability and Conviction - Sentence Modification - Socio-Economic Considerations - Parole Denial - The Supreme Court upheld the conviction of the appellant under Sections 302, 364, and 377 of IPC and Sections 4 and 6 of the POCSO Act for the aggravated penetrative sexual...
Protection of Children from Sexual Offences Act, 2012
Sections 4, 6, 29 and 30 - Presumption under the POCSO Act – Applicability and Conviction - Sentence Modification - Socio-Economic Considerations - Parole Denial - The Supreme Court upheld the conviction of the appellant under Sections 302, 364, and 377 of IPC and Sections 4 and 6 of the POCSO Act for the aggravated penetrative sexual assault and murder of a four-year-old child. Foundational facts, including the post-mortem evidence and circumstantial factors, justified the presumption under Sections 29 and 30 of the POCSO Act, with the accused failing to rebut this presumption. The Court emphasized the diabolic nature of the crime, which involved enticing the child under false pretenses, brutal sexual assault, and merciless strangulation. While affirming the conviction, the Court set aside the death penalty imposed by the Trial Court and confirmed by the High Court, holding that the case did not fall within the "rarest of rare" category. Considering mitigating factors, including the appellant's mental health challenges, socio-economic background, and good conduct in prison, the sentence was modified to rigorous imprisonment for a period of 25 years without remission. The Court applied the principle of proportionality, emphasizing the need to balance public confidence in justice with the possibility of reformation. The fine amounts imposed by the lower courts were waived in light of the appellant's financial constraints. The concurrent nature of the sentences under various sections was maintained, reflecting an approach that aligns with the principle of justice tempered with humanity. A related Special Leave Petition challenging the denial of parole was dismissed as the judgment rendered the issue moot but left room for the appellant to seek remedies as per law. Sambhubhai Raisangbhai Padhiyar v. State of Gujarat, 2024 LiveLaw (SC) 1004
Whether a compromise between the accused and the complainant in a case involving serious offenses under the POCSO Act can justify quashing criminal proceedings under Section 482, Cr. P.C. Whether such offenses can be treated as private disputes capable of settlement. Held, offenses under the POCSO Act, particularly those involving allegations of pressure to prevent reporting of crimes, cannot be treated as private disputes or minor compoundable offenses. A compromise between the accused and the complainant's family cannot justify quashing proceedings when the alleged offense has serious societal implications. The power under Section 482, Cr. P.C., cannot be invoked to quash proceedings for heinous offenses, as deterrence and societal interest must be prioritized. The POCSO Act was enacted to safeguard children from sexual offenses, and offenses under its purview are not merely private matters but have significant social ramifications. The statement of the complainant indicating pressure from the accused to refrain from lodging a report further justifies the continuation of criminal proceedings. Reliance was placed on Gian Singh v. State of Punjab and State of Madhya Pradesh v. Laxmi Narayan to emphasize that heinous offenses cannot be quashed solely on the basis of compromise. The appeal was allowed, and the High Court's order quashing the FIR and criminal proceedings was set aside. The investigation and proceedings were directed to continue in accordance with the law. The Court reiterated that a victim's parent cannot settle disputes involving serious offenses on behalf of the victim. Courts must safeguard children's interests and ensure justice is not compromised by private settlements. Ramji Lal Bairwa v. State of Rajasthan, 2024 LiveLaw (SC) 865
Section 4 - Indian Penal Code, 1860; Sections 376D and 354 - Code of Criminal Procedure, 1973; Sections 389, 357A and 357B - The appellant was convicted by the Sessions Court for gang rape (Section 376-D IPC), outrage of modesty (Section 354 IPC), and sexual offences against a minor under the POCSO Act, receiving a cumulative sentence of 20 years imprisonment with fines. The High Court dismissed his application for suspension of sentence and bail under Section 389 CrPC. Aggrieved, the appellant approached the Supreme Court. Whether the appellant should be granted suspension of sentence and bail. Whether the Sessions Court erred in not awarding victim compensation under Section 357A CrPC and POCSO Rules. Held, the Supreme Court allowed the appeal, granting suspension of sentence and bail, citing: The appellant had already served over half of his sentence. Co-accused had been granted similar relief by the High Court. Low probability of sentence enhancement by the High Court. The Court also directed : Sessions Courts to mandatorily consider awarding victim compensation under Section 357A CrPC and POCSO Rules in cases involving sexual offences, particularly against minors and women. High Courts to ensure implementation of victim compensation schemes, such as Maharashtra's "Manodhairya Scheme." Expedited consideration of interim compensation for the victim in the present case under the POCSO Rules. The Court emphasized the need for uniform and prompt implementation of victim compensation schemes across the judiciary. Appeal allowed, and the appellant was granted bail. Directions were issued for enhancing victim compensation mechanisms. Sahiba Noor Mohammad v. State of Maharashtra, 2024 LiveLaw (SC) 860
Create awareness about the POCSO act among children, implement sex education programs. Just Rights for Children Alliance v. S. Harish, 2024 LiveLaw (SC) 728
Desire to sexually exploit children inherent in the act of watching child sexual exploitative materials. Just Rights for Children Alliance v. S. Harish, 2024 LiveLaw (SC) 728
Don't use the term 'child pornography', instead use 'child sexual exploitative & abuse material'. Just Rights for Children Alliance v. S. Harish, 2024 LiveLaw (SC) 728
Governments have the obligation to impart sex education and create awareness among the general public about the statute. Just Rights for Children Alliance v. S. Harish, 2024 LiveLaw (SC) 728
Knowingly watching child pornography over the internet without downloading amounts to 'possession' under POCSO act. Just Rights for Children Alliance v. S. Harish, 2024 LiveLaw (SC) 728
Sex education is not a western concept, misconception that it encourages promiscuity among youth. Just Rights for Children Alliance v. S. Harish, 2024 LiveLaw (SC) 728
Storage of child pornography without deletion or reporting indicates intention to transmit, constitutes POCSO Act offence. Just Rights for Children Alliance v. S. Harish, 2024 LiveLaw (SC) 728
Section 4 and 6 - Indian Penal Code, 1860; Sections 376 (2) and 506 - Continued use of the "two-finger test" on rape survivors, despite previous rulings condemning the practice - Referred to its earlier decisions in Lillu alias Rajesh v. State of Haryana, (2013) 14 SCC 643 and State of Jharkhand v. Shailendra Kumar Rai, (2022) 14 SCC 299, which decried the test as regressive and invasive. A circular issued by the Government of Meghalaya on June 27, 2024, prohibiting the test and mandating disciplinary action for non-compliance, was noted and placed on record. The circular directs all government doctors and medical practitioners in Meghalaya to cease conducting the test immediately, with strict disciplinary actions, including suspension and penalties, to be imposed for non-compliance. It also mandates adherence to medico-legal guidelines issued by the Ministry of Health & Family Welfare and emphasizes the importance of compassionate care for sexual assault survivors. After reviewing the case, found no merit to interfere with the concurrent findings of the lower courts. The Court dismissed the petition on merits, upholding the conviction, and urged full compliance with the circular. (Para 4 - 8) Sunshine Kharpan v. State of Meghalaya, 2024 LiveLaw (SC) 654
Section 33 (5) - Recall of Witness under Section 311 of Cr.P.C – Protection of Child from Repeated Testimony – a child should not be repeatedly called to testify to protect them from further trauma. Mechanical recall of the victim would defeat the protective purpose of the POCSO Act. Madhab Chandra Pradhan v. State of Odisha, 2024 LiveLaw (SC) 615
Issue of victim support and rehabilitation under the POCSO Act and the Juvenile Justice (JJ) Act - The Court observed the failure of the State machinery under the JJ Act in fulfilling its obligations toward the victim and emphasized the need for remedial actions. It directed the formation of a team of experts, including a clinical psychologist and a social scientist, to meet the victim and help her make an informed choice regarding her future. The team is to carefully ascertain the victim's needs and any support she might be receiving from the accused and his family. The Court emphasized that the process must be handled with sensitivity to avoid causing further insecurity to the victim. In Re: Right to Privacy of Adolescents, 2024 LiveLaw (SC) 587 : AIR 2024 SC 4004
Section 19(6) - The Court expressed concern over the failure of the State machinery to follow the mandatory rehabilitation provisions under Section 19(6) of the POCSO Act. Emphasizing the importance of victim rehabilitation, the Court directed the formation of a committee comprising experts from NIMHANS or TISS to assist the victim in making an informed choice regarding her future. The State was instructed to provide the committee with details of the benefits available to the victim. The Court also directed all States and Union Territories to implement the provisions of Section 19(6) of the POCSO Act and Section 46 of the Juvenile Justice Act and submit compliance reports. In Re: Right to Privacy of Adolescents, 2024 LiveLaw (SC) 587 : AIR 2024 SC 4004
The accused was not an adolescent, but his age was about twenty-five years on the date of the commission of the offence, and the victim was only fourteen years old. When such offences of rape and aggravated penetrative sexual assault are committed, by exercising its jurisdiction under Article 226 of the Constitution of India and/or Section 482 of the Cr.PC, the High Court cannot acquit an accused whose guilt has been proved. Even if the accused and the victim (who has now attained majority) were to come out with a settlement, the High Court could not have quashed the prosecution. (Para 21 & 23.1) In Re: Right to Privacy of Adolescents, 2024 LiveLaw (SC) 587 : AIR 2024 SC 4004
The failure to implement these provisions, particularly Section 19(6) of the POCSO Act, denies victims the fundamental right to dignity and protection guaranteed under Article 21 of the Constitution of India. It directed strict implementation of these provisions to prevent victims from facing situations where their right to make informed choices about their future is compromised. The State is duty-bound to provide shelter, support, and financial assistance to victims, ensuring their reintegration into society and protecting their right to lead a dignified life. In Re: Right to Privacy of Adolescents, 2024 LiveLaw (SC) 587 : AIR 2024 SC 4004
The State had a duty to provide care and protection to the victim of an offense under the POCSO Act. Despite the legal framework in place, the State failed in its responsibilities. The court emphasized that under Section 19 of the POCSO Act, police must report such cases to the Child Welfare Committee (CWC) within 24 hours. Similarly, under Section 29 of the Juvenile Justice Act, the CWC is empowered to ensure the care and protection of children in need. The court further underscored the obligations of the CWC to act swiftly in cases of sexually abused children and take suo motu cognizance where necessary. In Re: Right to Privacy of Adolescents, 2024 LiveLaw (SC) 587 : AIR 2024 SC 4004
The fact that the appellant and the complainant have married each other during the pendency of the appeal gives rise to a reasonable belief that both were involved in some kind of relationship even when the offences alleged were said to have been committed. Hence, on grounds that the accused and the complainant married each other and the affirmation of the conviction of accused would have the disastrous consequence on the matrimonial relationship of the accused with the complainant, the appellant is acquitted of the charges. (Para 7, 9 & 11) Dasari Srikanth v. State of Telangana, 2024 LiveLaw (SC) 391 : AIR 2024 SC 2879
Failure to mask victim's identity in POCSO case - Sensitization of Judicial and Police Officers ordered - In this order, the court considers an application for anticipatory bail in a case under the POCSO Act. While denying bail, the court notes a violation of Section 33(7) of the POCSO Act and Section 228A of the IPC regarding the disclosure of the victim's identity. Citing the importance of safeguarding the victim's identity, the court directs the need for sensitization of judicial and police officers in West Bengal to ensure compliance with these provisions. The order emphasizes that disclosing the victim's identity is permissible only in specific circumstances for the child's best interest. The court orders a copy of the order to be forwarded to the Registrar General of the High Court of Calcutta for further action. Utpal Mandal @ Utpal Mondal v. State of West Bengal, 2024 LiveLaw (SC) 282
Credibility of testimony of the victim in matters involving sexual offences – The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution's case. The Court can rely on the victim as a “sterling witness” without further corroboration, but the quality and credibility must be exceptionally high. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, casts serious doubt with regard to the veracity of the prosecution version and could make it difficult for a conviction to be recorded. Considering the evidence of a victim subjected to a sexual offence, the Court does not necessarily demand an almost accurate account of the incident and allows the victim to provide her version based on her recollection of events, to the extent reasonably possible for her to recollect. If the Court deems such evidence credible and free from doubt, there is hardly any insistence on corroboration of that version. Material contradictions apparent in the depositions of prosecution witnesses, including the victim, significantly undermine the credibility of the prosecution version. Enough missing links present to extend the benefit of doubt to the accused. (Para 15, 16, 17 & 22) Nirmal Premkumar v. State, 2024 LiveLaw (SC) 221
Offence of sexual harassment in a public place, as opposed to one committed within the confines of a room or a house, or even in a public place but away from the view of the public, stands on different premise. If any doubt arises in the Court's mind regarding the veracity of the victim's version, the Court may, at its discretion, seek corroboration from other witnesses who directly observed the incident or from other attending circumstances to unearth the truth. (Para 18) Nirmal Premkumar v. State, 2024 LiveLaw (SC) 221
Conviction on sole evidence of victim – Conviction undoubtedly can be recorded on the sole evidence of a victim of crime; however, it must undergo a strict scrutiny through the well settled legal principles. (Para 22) Nirmal Premkumar v. State, 2024 LiveLaw (SC) 221
'One day trial' in POCSO case - Supreme Court affirms High Court Order for fresh trial after setting aside conviction. Bablu Yadav v. State of Bihar, 2024 LiveLaw (SC) 203