Protection of children from sexual offences
- A Manipur experience -

N Brajakanta Singh *

crime against children :: Pix - TSE

Introduction

Crime against children, particularly sexual assault on minor girls is increasing in our state. The civil society organizations have been demanding for curbing the incidents of crime against children and perpetrators of heinous crime like rapes should be given stringent punishment for their wrongdoing. For protecting the rights of children which has been a cherished goal of every society, numerous legislations have been made by competent legislatures, both at national level as well as state level.

Although the major penal law of the country, namely, the Indian Penal Code penalizes commission of sexual offences, the law does not provide for all types of sexual offences against children and more importantly, it does not distinguish between adult and child victims.

The need for a separate law dealing with sexual offences against children has been supplemented by the enactment of "The Protection of Children from Sexual Offences Act, 2012" which received the assent of the President of India on the 19th June, 2012. The main objective of the present article is to examine the important provisions of the Act. It is also aimed to provide a study of the application of the law in our state in the light of the judgment recently delivered by the learned Special Judge (POCSO), Manipur East.

Goals of the POCSO Act

As the name suggests, the Protection of Children from Sexual Offences Act, 2012(hereinafter the Act) aims to protect children from offences of sexual assault, sexual harassment and pornography. The Act provides stringent punishment to perpetrators committing sexual offences against children for different types of sexual assault ranging from minimum three years imprisonment to imprisonment for life with fine. It has incorporated child-friendly procedures for reporting of cases, recording of evidence, process of investigation, medical examination of a child victim and speedy trial of such cases.

The law defines a child as any person below the age of eighteen years. It provides for establishment of a Special Court for speedy trial the offences under the Act and for this purpose the Courts of Session in each district are designated as the Special Court. For speedy trial, the Act provides that the evidence of the child victim to be recorded within 30 days and the trial has to be completed within one year from the date of taking cognizance of the offence.

The statement of the child shall be recorded at the residence of the child or at a place of his choice in presence of the parents preferably by a woman police officer not below the rank of sub-inspector not in uniform. In case of disable child, the assistance of a special educator or any person familiar with the manner of communication of the child or an expert in that field may be taken.

No child shall be detained in the police station in the night for any reason. The medical examination of the child victim is to be conducted in the presence of the parent or any other person in whom the child reposes trust or confidence. In case the victim is a girl child, the medical examination shall be done by a woman doctor.

For effective prosecution of the perpetrators, the Act envisages appointment of experienced advocates having seven years practice as Special Public Prosecutors. Frequent breaks for the child during trial may be permitted and the child shall not be called repeatedly to testify in the court. The court shall not permit aggressive questioning or character assassination of the child and the dignity of the child shall be maintained during the trial. The child is not to be exposed to the accused person at the time of testifying and the trials are to be held in-camera.

Case study in Manipur

Our state has witnessed a number of cases relating to sexual assault committed against minor children. The crimes of sexual assault against children are committed by persons acquainted with the victims or by persons who are in the management of an educational institution where the children studied. The case taken up herein is related to aggravated penetrative sexual assault committed by the Chowkidar of an educational institution on a minor girl who was reading in nursery class in 2012.

The accused was charged with offences punishable under section 354 of the Indian Penal Code and section 6 of the Act. The learned Special Judge (POCSO), Manipur East has rightly convicted the accused person for the crime in both the count. Based on the depositions of the prosecution witnesses including the doctor who had examined the victim, the learned Special Judge held that the accused had inserted his finger into the vagina of the victim which falls under the definition of penetrative sexual assault. It is a settled law that partial penetration is sufficient to prove the offence of rape and slight penetration is sufficient.

The learned Judge accepted the submissions of the learned Special Public Prosecutor that since the victim is a student and was below 12 years at the time of incident and the accused is a staff of an educational institute, the provisions of section 5(f) and (m) of the Act are attracted and the accused ought to be convicted under section 6 of the Act for committing aggravated penetrative sexual assault and also under section 354 of the Indian Penal Code for outraging modesty of a woman.

The Special Judge also held that once the prosecution has discharged its initial burden by establishing the facts and ingredients of the offences punishable under above stated legal provisions, the burden has shifted to the accused to prove his innocence by sufficient evidence to discredit the prosecution case beyond all reasonable doubts in view of the statutory presumptions under section 29 of the Act.

It was proved that the accused was present with the victim in the room where the incident took place and the defense has failed to disprove the prosecution case beyond all reasonable doubts by discrediting the prosecution witnesses. The defense raises some technical procedural lapses such as late reporting of the case, medical examination of the victim by a male doctor, etc which could not affect the trial and the accused was not affected prejudicially in his defense.

The learned Judge reasoned that since all the witnesses were thoroughly cross examined by the defense lawyer and nothing substantial could be extracted to dislodge the prosecution story, the alleged technical lapses do not prejudicially affect the defense of the accused.

The case is a significant one in the sense that it highlights the shortcomings of the implementation of the new law. The State Government was directed to appoint sufficient number of female doctors and to impart trainings to various stake holders so that the law was implemented in letter and spirit. Though the convict was suffering from cancer and no previous criminal record, the Special Judge was unable to exercise his discretion in awarding lesser punishment than the minimum prescribed by the Act.

The convict was, thus, awarded the minimum punishment for the offence, i.e. 10 years rigorous imprisonment with a fine of Rs. 25,000/- in default of payment of the fine he has to undergo simple imprisonment for 2 years more. For the offence under section 354 of the Indian Penal Code, he was sentenced to undergo rigorous imprisonment for 1 year with a fine of Rs. 5,000/- and in default of fine to undergo simple imprisonment for 3 months again. However, the two sentences shall run concurrently.

The learned Special Judge had also rightly, considering the age of the victim and economic conditions of her parents, directed the State Government to pay a sum of Rs. 2 lakhs as compensation to the victim for her rehabilitation as mandated under section 33(8) 0f the Act. It was also directed that the amount of fine when deposited shall be given to the victim as provided by section 357 of the Criminal Procedure Code.

The case remarkably shows that crime does not reap and the long arms of law will reach the criminals. The prospective criminals, particularly the would be sexual assaulters of children, can learn a lot from the case.