'POCSO Court Judges Must Undergo Training By Tamil Nadu State Judicial Academy': Madras High Court Finds Erroneous Application Of POCSO Act By Trial Court

The Madras High Court vide its recent judgement dated July 7 observed that judges presiding over special courts dealing with cases under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) must undergo compulsory training and sensitisation on how to properly adjudicate such sensitive cases.

Justice P Velmurugan made this observation after it came to the notice of the Court that the Sessions Court had failed to appreciate the age of the victim on the date of the offence i.e. 8 years and had proceeded to impose a less stringent sentence upon the accused contrary to the provisions of the POCSO Act.

According to the provisions of the POCSO Act, when a child is below 12 years of age and is subjected to sexual assault Courts must apply Section 9 (m) of the Act stipulating aggravated sexual assault as the offence is perceived to be more heinous and is thus punishable with a minimum sentence of 5 years. Whereas if the child is of 12 years of age or older, then Section 7 of the Act applies (sexual assault) for which the minimum sentence is 3 years.

In the instant case the Sessions Court had wrongly invoked Sections 7 and 8 of the POCSO Act instead of invoking Section 9 (m) of the Act since the victim was below 12 years old.

Accordingly the Court made the following pertinent observation, 

"It is pertinent to mention here that the trial Judge has failed to appreciate the age of the victim girl and not understood the relevant provisions of POCSO Act. In many cases, this Court observed that the Special Judges who deal with cases under POCSO Act, not properly understood the scope and object of the POCSO Act. Before posting any Sessions Judge to the Special Court which deals with the cases under POCSO Act, have to necessarily sensitise and impart training to them through Tamil Nadu State Judicial Academy. The Registrar General and Director of State Judicial Academy have to necessarily take steps for the same after getting necessary approval from My Lord The Honourable Chief Justice as Patron-in-Chief and Board of Governors of the State Judicial Academy."

Background:

In the instant case, the accused had sexually assaulted a 10 year old girl who was his neighbour. The child was first sexually assaulted on January 26, 2014 after the accused had spotted her playing in front of her house following which he had taken her into his house and sexually molested her.

The next day the accused had again called the child to his house with the intention of sexually assaulting her. However, when the child refused the accused had proceeded to threaten her against disclosing the incident to anyone else. Again on the following day i.e. on January 28, 2014, the accused had allegedly followed the child and on noticing this the child's mother had ended up questioning the child. After the child narrated her ordeal, the mother had lodged a complaint with the police on January 29, 2014.

Accordingly charges were framed against the accused under Sections 7 and 8 of the POCSO Act and Section 506 (i) of the Indian Penal Code (punishment for criminal intimidation). Consequently the Sessions Court convicted the accused and sentenced him to undergo rigorous imprisonment for a period of three years for the offences under the POCSO Act and for the offence under the IPC the accused was sentenced to undergo rigorous imprisonment for a period of one year. Aggrieved by the order of the Sessions Court, the instant appeal had been filed.

The counsel for the accused had contended that there was an inordinate delay in lodging the FIR and that investigation had not been conducted properly which is fatal to the case of the prosecution. It was also averred that there existed enmity between the accused and the victim's father due to which the accused was being falsely implicated. The accused had further contended that the victim's statements had not been corroborated and that she had not been subjected to a medical examination which is required to determine sexual assault.

Observations:

Rejecting the contentions of the accused, the High Court held that the prosecution had proved its case beyond reasonable doubt. The Court further noted that there was no inordinate delay in filing the FIR and that a medical examination was not required in the instant case as the victim had not been subjected to penetrative sexual assault.

"The lapses committed on the part of the prosecution will not be a ground to disbelieve the evidence of the victim girl. The victim girl was examined before the Court as a witness and she has clearly narrated the said incident", the Court opined.

Negating the need for any corroborative evidence, the Court observed "in cases of this nature, no corroboration is necessary, because prudent man would not commit these type of offence in the presence of adult members and the presence of independent eye witnesses are mostly improbable."

Further the Court held that the testimony of the victim was cogent and convincing and that in cases of such nature no corroboration is necessary if the evidence of the victim girl is trust worthy.

Accordingly the Court upheld the conviction of the accused but modified the sentence imposed by the Sessions Court to secure the interests of the minor victim.

"The trial Court has directed the appellant to undergo three years of rigorous imprisonment for the offence under Section 7 punishable under Section 8 of POCSO Act and also convicted and sentenced to undergo one year rigorous imprisonment for the offence under Section 506(i) IPC. Though the sentences are ordered to be run concurrently by the trial Court, the same is set aside and modified as both the sentence of imprisonment are to run consecutively, which will meets the ends of justice", the Court ordered.

Case Title: Venkatachalam v. The Inspector of Police

Click Here To Read/Download Order