PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012

Subject Matter : Penetrative sexual assault
Relevant Section : Section 3: A person is said to commit "penetrative sexual assault" if he causes or manipulates the body parts of the child to penetrate his penis or any foreign object into the child's vagina, mouth, urethra or anus or applies his mouth to any of the said areas.
Key Issue : Whether the act of penetrative sexual assault has been committed on the prosecutrix?
Citation Details : Lokesh vs. State (07.06.2019 - DELHC): MANU/DE/2004/2019
Summary Judgment :

Facts: In 2013, the complainant Guddi, arrived at the Police Station, with her daughter, the prosecutrix, about 4 years of age, and tendered her statement, on the basis whereof prosecution was lodged against the present appellant. According to the said statement, Guddi, along with the prosecutrix and her 9-year-old son, had gone to the Rama Market, Munirka, to meet the appellant, who worked at a cycle shop, the occasion being that of "Bhai Duj". After performing the ceremony, the appellant told her that his mother had invited them to his house. She, i.e. Guddi, along with her son, proceeded to the house of the appellant, at Kakrola Vihar, where he resided with his mother. The appellant, however, reached his house, accompanied by the prosecutrix only at about 10 p.m. As the prosecutrix appeared distressed, she asked her what had happened, whereupon the prosecutrix informed her that the appellant had taken her to a jungle, removed her clothes, inserted something in her vagina (referred to, by her, as "susu" which, in the context, may be taken to be a euphemism for "genitals") and, thereafter, inserted his susu in her anus. The prosecutrix further disclosed, to her mother, that, as the act had caused her severe pain, she started crying, whereupon the appellant beat her and threatened to kill her mother and brother, if she were to disclose, to her mother what had happened. On removing the underwear of the prosecutrix, she found bloodstains in her pelvic region, which was also swollen. She further stated that, as she was apprehensive, she did not disclose what had happened to anybody and got her daughter, i.e. the prosecutrix, treated privately. However, when she did not recover, and the pain continued, she informed her relatives, who encouraged her to report the matter to the Police. The accused was convicted by the sessions court u/s. 376 of IPC and Section 3,4,5,6 of POCSO Act. Hence, the present appeal.

Held: In cases of sexual assault against children, the first, and most important, piece of evidence, is always the statement of the child prosecutrix herself/himself. At the outset, one may note that there is no serious dispute, in the present case, regarding the age of the child prosecutrix, which stands established by the records from the office of the Registrar of Births and Deaths as 4 years. Guddi, in her testimony during trial, deposed, first, that, in the toilet, she had noticed cut marks around the anal area of her daughter, i.e. the prosecutrix, and that, on her carrying her as to what had happened, the prosecutrix informed her that the appellant had, in the jungle, taken off undergarments and, after gagging her with a cloth, "put her (penis) private organ in her anus as well as on her urinating part." PW-6 went on to state that, on further examination, she noticed injury marks on the body of her daughter, along with two-three cut marks on her anus. Seen holistically, these testimonies, in my view, leave no manner of doubt that penetrative anal assault had been committed, by the appellant, on the prosecutrix. The innocence of the prosecutrix in the present case, who had barely savoured the first fragrance of childhood, let alone adolescence, was brutally plundered by the appellant, the deviancy of his act being augmented by the fact that he chose to sodomise her. The trauma that the prosecutrix is bound to suffer, on account of the appellant, is bound to be lifelong. Therefore, the conviction stands but the sentence is not enhanced.

Subject Matter : Aggravated penetrative sexual assault
Relevant Section : Section 5: A person who is a police officer, member of the armed forces or security forces or a public servant is said to commit "penetrative sexual assault" if he causes or manipulates the body parts of the child to penetrate his penis or any foreign object into the child's vagina, mouth, urethra or anus or applies his mouth to any of the said areas.
Key Issue : Whether the act of penetrative sexual assault has been committed on the prosecutrix?
Citation Details : Lokesh vs. State (07.06.2019 - DELHC): MANU/DE/2004/2019
Summary Judgment :

Facts: In 2013, the complainant Guddi, arrived at the Police Station, with her daughter, the prosecutrix, about 4 years of age, and tendered her statement, on the basis whereof prosecution was lodged against the present appellant. According to the said statement, Guddi, along with the prosecutrix and her 9-year-old son, had gone to the Rama Market, Munirka, to meet the appellant, who worked at a cycle shop, the occasion being that of "Bhai Duj". After performing the ceremony, the appellant told her that his mother had invited them to his house. She, i.e. Guddi, along with her son, proceeded to the house of the appellant, at Kakrola Vihar, where he resided with his mother. The appellant, however, reached his house, accompanied by the prosecutrix only at about 10 p.m. As the prosecutrix appeared distressed, she asked her what had happened, whereupon the prosecutrix informed her that the appellant had taken her to a jungle, removed her clothes, inserted something in her vagina (referred to, by her, as "susu" which, in the context, may be taken to be a euphemism for "genitals") and, thereafter, inserted his susu in her anus. The prosecutrix further disclosed, to her mother, that, as the act had caused her severe pain, she started crying, whereupon the appellant beat her and threatened to kill her mother and brother, if she were to disclose, to her mother what had happened. On removing the underwear of the prosecutrix, she found bloodstains in her pelvic region, which was also swollen. She further stated that, as she was apprehensive, she did not disclose what had happened to anybody and got her daughter, i.e. the prosecutrix, treated privately. However, when she did not recover, and the pain continued, she informed her relatives, who encouraged her to report the matter to the Police. The accused was convicted by the sessions court u/s. 376 of IPC and Section 3,4,5,6 of POCSO Act. Hence, the present appeal.

Held: In cases of sexual assault against children, the first, and most important, piece of evidence, is always the statement of the child prosecutrix herself/himself. At the outset, one may note that there is no serious dispute, in the present case, regarding the age of the child prosecutrix, which stands established by the records from the office of the Registrar of Births and Deaths as 4 years. Guddi, in her testimony during trial, deposed, first, that, in the toilet, she had noticed cut marks around the anal area of her daughter, i.e. the prosecutrix, and that, on her carrying her as to what had happened, the prosecutrix informed her that the appellant had, in the jungle, taken off undergarments and, after gagging her with a cloth, "put her (penis) private organ in her anus as well as on her urinating part." PW-6 went on to state that, on further examination, she noticed injury marks on the body of her daughter, along with two-three cut marks on her anus. Seen holistically, these testimonies, in my view, leave no manner of doubt that penetrative anal assault had been committed, by the appellant, on the prosecutrix. The innocence of the prosecutrix in the present case, who had barely savoured the first fragrance of childhood, let alone adolescence, was brutally plundered by the appellant, the deviancy of his act being augmented by the fact that he chose to sodomise her. The trauma that the prosecutrix is bound to suffer, on account of the appellant, is bound to be lifelong. Therefore, the conviction stands but the sentence is not enhanced.

Subject Matter : Sexual assault
Relevant Section : Section 7: Whoever, with sexual intent, touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
Key Issue : a. Whether the offences committed by the accused amount to sexual harrassment or sexual assault?
b. Whether the facts of the case constitute any offence punishable under the provisions of the POCSO Act?
Citation Details : Mondi Murali Krishna vs. Dumpa Hanisha Naga Lakshmi and Ors. (07.05.2020 - APHC): MANU/AP/0033/2020
Note: This case laid down the rule that "POCSO Act will cover adults who faced sexual offence as a child."
Summary Judgment :

Facts: The investigation revealed that the accused were the seniors of the deceased. They made sexual advances towards her on several occassions desppite her reluctance. One of the accused also followed her to her hometown. They used to harrass her by calling her on the phone and many times alone in the college campus and by talking to her indecently. She mentioned all these activities in detail in the journal that she maintained on a daily basis. She also informed her father about this who asked the Principal and the HOD to look into the matter. But it was of no use. The last nail in the deceased's coffin was the indecent and vulgar behaviour of the accused during the award ceremony of the fresher's party where they touched her inappropriately on the stage and humiliated her infront of everyone. This affected her mentally so much so that she hung herself in her hostel room. The Investigating Officer stated that the facts of the case satisfy the ingredients of commission of offences of sexual assault and sexual harassment punishable under Sections 7, 8, 9, 11 and 12 of the POCSO Act by the accused against the deceased and as the deceased was a child below the age of 18 years at the time of commission of the said acts of sexual assault and sexual harassment that a case under the POCSO Act is made out. The sessions court held that since at the time of commission of suicide the deceased was not a minor, hence POCSO Act is no applicable. Hence the present appeal.

Held: a. The said acts of sexual assault and sexual harassment committed by the accused clearly constitute an offence punishable under Sections 8 and 12 of the said Act. The acts of catching her hands and her waist with sexual intent and constantly following her and making a proposal to her or insisting her to satisfy their sexual desire are all the acts which clearly constitute an offence punishable under Sections 7 and 11 of the Act. The expression “doing any other act with
sexual intent” used in the second part is wide enough to include in it various other acts which are committed by the culprits against a child with sexual intent. Therefore, in the considered view of this Court, the second part of the above Section attracts to the present facts of the case.
b. It may be seen here that touching the private parts like vagina, penis, anus or breast of a child is made an offence of sexual assault under the first part and doing any other act with sexual intent which involves physical contact without penetration is also made an offence of sexual assault under the second part of the Section. So, these acts regarding which evidence was collected during the course of investigation, which were committed against the deceased by the accused 2 and 3 on 18-4-2015, by which time she was a child and not a major, prima facie, constitute an offence of sexual assault under Section 7 of the Act. these acts of following her constantly both physically and by mobile phone clearly attracts the offence under Clause (iv) of Section 11 which says when any person with sexual intention repeatedly or constantly follows or watches or contacts such child either directly or through electronic, digital or any other means is said to have committed the offence of sexual harassment as contemplated under Section 11 of the Act.

Subject Matter : Aggravated sexual assault
Relevant Section : Section 9: A person who is a police officer, member of the armed forces or security forces or a public servant with sexual intent, touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit aggravated sexual assault.
Key Issue : a. Whether the offences committed by the accused amount to sexual harrassment or sexual assault?
b. Whether the facts of the case constitute any offence punishable under the provisions of the POCSO Act?
Citation Details : Mondi Murali Krishna vs. Dumpa Hanisha Naga Lakshmi and Ors. (07.05.2020 - APHC): MANU/AP/0033/2020
Note: This case laid down the rule that "POCSO Act will cover adults who faced sexual offence as a child."
Summary Judgment :

Facts: The investigation revealed that the accused were the seniors of the deceased. They made sexual advances towards her on several occassions desppite her reluctance. One of the accused also followed her to her hometown. They used to harrass her by calling her on the phone and many times alone in the college campus and by talking to her indecently. She mentioned all these activities in detail in the journal that she maintained on a daily basis. She also informed her father about this who asked the Principal and the HOD to look into the matter. But it was of no use. The last nail in the deceased's coffin was the indecent and vulgar behaviour of the accused during the award ceremony of the fresher's party where they touched her inappropriately on the stage and humiliated her infront of everyone. This affected her mentally so much so that she hung herself in her hostel room. The Investigating Officer stated that the facts of the case satisfy the ingredients of commission of offences of sexual assault and sexual harassment punishable under Sections 7, 8, 9, 11 and 12 of the POCSO Act by the accused against the deceased and as the deceased was a child below the age of 18 years at the time of commission of the said acts of sexual assault and sexual harassment that a case under the POCSO Act is made out. The sessions court held that since at the time of commission of suicide the deceased was not a minor, hence POCSO Act is no applicable. Hence the present appeal.

Held: a. The said acts of sexual assault and sexual harassment committed by the accused clearly constitute an offence punishable under Sections 8 and 12 of the said Act. The acts of catching her hands and her waist with sexual intent and constantly following her and making a proposal to her or insisting her to satisfy their sexual desire are all the acts which clearly constitute an offence punishable under Sections 7 and 11 of the Act. The expression "doing any other act with
sexual intent" used in the second part is wide enough to include in it various other acts which are committed by the culprits against a child with sexual intent. Therefore, in the considered view of this Court, the second part of the above Section attracts to the present facts of the case.
b. It may be seen here that touching the private parts like vagina, penis, anus or breast of a child is made an offence of sexual assault under the first part and doing any other act with sexual intent which involves physical contact without penetration is also made an offence of sexual assault under the second part of the Section. So, these acts regarding which evidence was collected during the course of investigation, which were committed against the deceased by the accused 2 and 3 on 18-4-2015, by which time she was a child and not a major, prima facie, constitute an offence of sexual assault under Section 7 of the Act. these acts of following her constantly both physically and by mobile phone clearly attracts the offence under Clause (iv) of Section 11 which says when any person with sexual intention repeatedly or constantly follows or watches or contacts such child either directly or through electronic, digital or any other means is said to have committed the offence of sexual harassment as contemplated under Section 11 of the Act.

Subject Matter : Medical examination of a child
Relevant Section : Section 27: The medical examination of a child in respect of whom any offence has been committed under this Act, shall, whether or not an FIR has been registered, be conducted in accordance with section 164A of the Code of Criminal Procedure, 1973. In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence.
Where, in case the parent of the child or other person referred to in sub-section (3) cannot be present, for any reason, during the medical examination of the child, the medical examination shall be conducted in the presence of a woman nominated by the head of the medical institution.
Key Issue : a. Whether the offences committed by the accused amount to sexual harrassment or sexual assault?
b. Whether the facts of the case constitute any offence punishable under the provisions of the POCSO Act?
Citation Details : Mondi Murali Krishna vs. Dumpa Hanisha Naga Lakshmi and Ors. (07.05.2020 - APHC): MANU/AP/0033/2020
Note: This case laid down the rule that "POCSO Act will cover adults who faced sexual offence as a child."
Summary Judgment :

Facts: The investigation revealed that the accused were the seniors of the deceased. They made sexual advances towards her on several occassions desppite her reluctance. One of the accused also followed her to her hometown. They used to harrass her by calling her on the phone and many times alone in the college campus and by talking to her indecently. She mentioned all these activities in detail in the journal that she maintained on a daily basis. She also informed her father about this who asked the Principal and the HOD to look into the matter. But it was of no use. The last nail in the deceased's coffin was the indecent and vulgar behaviour of the accused during the award ceremony of the fresher's party where they touched her inappropriately on the stage and humiliated her infront of everyone. This affected her mentally so much so that she hung herself in her hostel room. The Investigating Officer stated that the facts of the case satisfy the ingredients of commission of offences of sexual assault and sexual harassment punishable under Sections 7, 8, 9, 11 and 12 of the POCSO Act by the accused against the deceased and as the deceased was a child below the age of 18 years at the time of commission of the said acts of sexual assault and sexual harassment that a case under the POCSO Act is made out. The sessions court held that since at the time of commission of suicide the deceased was not a minor, hence POCSO Act is no applicable. Hence the present appeal.

Held: a. The said acts of sexual assault and sexual harassment committed by the accused clearly constitute an offence punishable under Sections 8 and 12 of the said Act. The acts of catching her hands and her waist with sexual intent and constantly following her and making a proposal to her or insisting her to satisfy their sexual desire are all the acts which clearly constitute an offence punishable under Sections 7 and 11 of the Act. The expression "doing any other act with
sexual intent" used in the second part is wide enough to include in it various other acts which are committed by the culprits against a child with sexual intent. Therefore, in the considered view of this Court, the second part of the above Section attracts to the present facts of the case.
b. It may be seen here that touching the private parts like vagina, penis, anus or breast of a child is made an offence of sexual assault under the first part and doing any other act with sexual intent which involves physical contact without penetration is also made an offence of sexual assault under the second part of the Section. So, these acts regarding which evidence was collected during the course of investigation, which were committed against the deceased by the accused 2 and 3 on 18-4-2015, by which time she was a child and not a major, prima facie, constitute an offence of sexual assault under Section 7 of the Act. these acts of following her constantly both physically and by mobile phone clearly attracts the offence under Clause (iv) of Section 11 which says when any person with sexual intention repeatedly or constantly follows or watches or contacts such child either directly or through electronic, digital or any other means is said to have committed the offence of sexual harassment as contemplated under Section 11 of the Act.

Subject Matter : Use of a child for pornographic purposes
Relevant Section : Section 13: Whoever, uses a child in any form of media for the purposes of sexual gratification, which includes representation of the sexual organs of a child; usage of a child engaged in real or simulated sexual acts (with or without penetration); the indecent or obscene representation of a child, shall be guilty of the offence of using a child for pornographic purposes.
Key Issue : Whether the act of the accused is covered under the provision of using a child for pornographic purposes?
Citation Details : Vanita Vasant Patil and Ors. vs. The State of Maharashtra and Ors. (02.11.2018 - BOMHC): MANU/MH/3022/2018
Summary Judgment :

Facts: The informant/victim gir resides at village Mothi Jui, Taluka Uran along with her parents, brother and sisters and was learning in 5th standard in Z.P. Primary School at village Mothi Jui. Accused No. 1 was working as teacher, while accused No. 2 was working as headmistress in the said School. Two months prior to the filing of the report, informant/victim girl was playing in the school premises along with other students. At that time, accused No. 1 called informant and 2-3 girls and then took informant alone in 6th-A Class room by sending remaining girls to their class room. Then accused No. 1 bolted the said class room from inside and gave Kachha Aam chocolate to the informant and kept the informant on a bench by saying that he wants to snap her photographs. Then accused No. 1 laid the informant on the bench and removed her clothes and snapped photographs of the chest and private part of the informant on his mobile by assuring to give money. Informant did not narrate the incident to others. The informant along with her parents came to Uran Police Station and lodged the report on 20th January, 2013, regarding aforesaid incident. PI Patil referred the informant for medical examination and Dr. Jaya Shrinivasan examined the informant and opined that there was possibility of evidence of sexual abuse. PI Patil arrested the accused and referred accused No. 1 for medical examination. Charges u/s. 13 and 14 and other provisions were filed against the accused. The trial court convicted the accused for the said offence. Hence the present appeal.

Held: Thus upon re-appreciation of entire evidence, we are of the considered opinion that, the evidence of the victim girl-Y, medical officer (PW-14) and other prosecution witnesses is not acceptable and cannot form basis for conviction. So also, the evidence on record do not establish that actually the alleged incident of sexual assault took place. The evidence on record is not sufficient to prove the guilt of accused beyond reasonable doubt. There is no clinching and credible evidence to convict the accused for the offences levelled against them. The reasons and findings recorded by the trial court are found to be perverse and based upon improper appreciation of evidence on record and not sustainable in law. We are of the view that prosecution has failed to prove the guilt against both the accused beyond reasonable doubt. Therefore, both the accused deserves to be given benefit of doubt.

Subject Matter : Obligation of media, studio and photographic facilities to report cases of sexual exploitation of a child
Relevant Section : Section 20: Any personnel of the media or hotel or lodge or hospital or club or studio or photographic facilities, by whatever name called, irrespective of the number of persons employed therein, shall, on coming across any material or object which is sexually exploitative of the child (including pornographic, sexually-related or making obscene representation of a child or children) through the use of any medium, shall provide such information to the Special Juvenile Police Unit, or to the local police, as the case may be.
Key Issue : Whether the accused was obliged to report the offence to the police authorities?
Citation Details : Balasaheb vs. The State of Maharashtra (22.03.2017 - BOMHC): MANU/MH/0533/2017
Summary Judgment :

Facts: The victim girl child was taking school education in a residential school named as Shri Sant Gadge Maharaj Madhyamik Ashramshala at Gondavale. Being a residential ashram school, the victim female child used to stay in the school itself along with her colleagues. It is case of the prosecution that accused No. 1 Shahaji Patole used to work as the Cook in the Ashram School where the victim female child was staying for taking education. It is alleged that on 11th September 2015 when because of her ill-health, the victim female child instead of attending her classes was staying in her room, accused No. 1 Shahaji Patole - cook of the ashram school committed rape on her by taking her to the nearby bathroom. This incident is witnessed by Bharti D. Lokhande and Sonia Ovhal - colleagues of the victim female child. The victim female child then reported the incident to the present revision petitioner/original accused No. 2, who happens to be the Director of the Trust running the Ashram School. Thereafter, informant Anjana - aunt of the victim female girl, so also her other relatives, disclosed the incident to the revision petitioner/original accused No. 2. However, instead of reporting the matter to the police, according to the prosecution case, the revision petitioner/original accused No. 2 insisted the informant and other relatives of the victim female child to settle the matter on a cup of tea in order to prevent defamation of the school. Statement of the victim female child, her colleague Bharti, so also the FIR and other statements reflect the fact that the incident of aggravated penetrative sexual on the victim female child by the cook of the Ashram School came to be reported to the revision petitioner/original accused No. 2 - Director of the Trust, but, he insisted for settling the matter instead of reporting the same to the police, in order to prevent defamation of his school.

Held: In the wake of the fact that the revision petitioner/original accused No. 2 was certainly having the knowledge of commission of the alleged offence, I am unable to persuade myself to endorse the view taken by the learned Single Judge of Chhattisgarh High Court to the effect that it is initially for the prosecution to establish first commission of the main offence under the POCSO Act for making a person liable for the offence punishable under Section 20 and 21(2) of the POCSO Act. If such view is accepted, then, it will not only defeat the very object of enactment of the POCSO Act i.e. to protect the child from sexual offences, but it will also violate the provision of Section 33(5) of the POCSO Act, which provides that the child should not be called repeatedly to testify in the court. Revision petition dismissed.

Subject Matter : Distinction between Sexual Assault under POCSO Act and IPC.
Relevant Section : Section 7, POCSO Act, 2012: If a person,-
(i) touches the vagina, penis or anus or breast of the child,
(ii) makes the child touch the vagina, penis, anus or breast of such person or any other person or
(iii) does any other act which involves physical contact without penetration, all with sexual intent, then that person is said to have committed sexual assault.
Section 354, IPC 1860: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely to outrage her modesty, shall be punished with imprisonment of one to five years.
Key Issue : Whether the act committed by the accused is sexual assault under POCSO Act?
Citation Details : Satish vs. The State of Maharashtra (19.01.2021 - BOMHC): MANU/MH/0064/2021
Summary Judgment :

Facts: On 14.12.2016, the informant (mother of the prosecutrix) lodged a report at police station Gittikhadan, Nagpur, stating therein that the appellant took her daughter (prosecutrix) aged about 12 years, on the pretext of giving her guava, in his house and pressed her breast and attempted to remove her salwar. At that point of time, the informant reached the spot and rescued her daughter. Immediately, she lodged First Information Report. On the basis of the said FIR, crime came to be registered against the appellant/accused.

Held: The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of 'sexual assault'. The act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty. It is not possible to accept this submission for the aforesaid reasons. Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration. In view of the above discussion, this Court holds that the appellant is acquitted under Section 8 of the POCSO Act and convicted under minor offence u/s. 354 of IPC and sentenced him to undergo R.I. for one year and to pay fine of Rs. 500/-, in default of fine to suffer R.I. for one month. The sentence for the offence punishable under Section 342 of the Indian Penal Code i.e. six months and fine of Rs. 500/-, in default to suffer R.I. for one month, is maintained.