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POCSO Act: All India Annual Digest 2024
LIVELAW NEWS NETWORK
26 Feb 2025 4:30 AM
SUPREME COURTSections 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...
SUPREME COURT
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
HIGH COURTS
ALLAHABAD HIGH COURT
Case title - Sanjeev Kumar vs. State Of U.P. And 3 Others 2024 LiveLaw (AB) 227 [APPLICATION U/S 482 No. - 9169 of 2024]
Case citation: 2024 LiveLaw (AB) 227
The Allahabad High Court has observed that under the POSCO Act 2012, regarded as a "Special Statute", offences cannot be dismissed solely on the basis of a compromise between the accused and the prosecutrix-victim.
"Once the consent of the minor prosecutrix is immaterial for registration of offence, then such consent shall still remain immaterial for all practical purposes at all the stages including for compromise. Merely because, the minor prosecutrix has later on agreed to enter into a compromise with the applicant, would not be sufficient to quash the proceedings [under the POCSO Act]," a bench of Justice Samit Gopal observed.
Case title - Aman @ Vansh vs. State Of Up And 3 Others 2024 LiveLaw (AB) 239 [CRIMINAL MISC. BAIL APPLICATION No. - 2322 of 2024]
Case citation: 2024 LiveLaw (AB) 239
In a significant ruling, the Allahabad High Court has directed that the police authorities/investigation officers must ensure that in every POCSO Act case, a medical report determining the victim's age is drawn up at the outset under the mandate of Section 164A of CrPC read with Section 27 of the POCSO Act, 2012 and the same is submitted to the Court without any delay.
The Court directed thus while noting that the discrepancies in the victim's age in POCSO cases can substantially affect the rights and liberties of the accused.
Case title - Rajendra Prasad vs. State Of U.P. And 3 Others
Citation : 2024 LiveLaw (AB) 653
Noting that the child victims of sexual abuse are the most vulnerable class of citizens, the Allahabad High Court emphasized the importance of supporting such victims of sexual offences under the POCSO Act.
A bench of Justice Ajay Bhanot observed that since these victims face numerous challenges, including trauma, social marginalisation, and lack of resources, which hinder their ability to seek justice, the statutory support systems, such as legal aid, medical care, and counselling, become essential for empowering these children to navigate the legal process effectively.
BOMBAY HIGH COURT
Case Title: XYZ v. State of Maharashtra
Citation: 2024 LiveLaw (Bom) 44
The Bombay High Court denied bail to a man accused of sexually assaulting his nieces observing that even touching the penis to the victim's vagina with sexual intent constitutes the offence penetrative sexual assault on a minor under Section 4 of the Protection of Children from Sexual Offences Act (POCSO).
“…even in case of penetrative sexual assault, it is not essential that there must be some injury to the hymen, labia majora, labia minora of the victim. Mere touching of the penis to the private part of the victim constitutes an offence under section 4 of the POCSO Act…,” Justice Prithviraj Chavan observed.
The court interpreted phrases 'inserts or penetrates to any extent' mentioned in Section 3 (a) and 3 (b) of the POCSO, which describes penetrative sexual assault, to include touching of the reproductive organs. The minimum punishment for the offence is prescribed under Section 4 and is 20 years.
Case Title: XXX v. State of Maharashtra
Citation: 2024 LiveLaw (Bom) 45
The Bombay High Court granted bail to a man accused of sexually assaulting his daughter after finding that the complainant (wife of the accused) and her advocate, filed a false affidavit in the case.
Justice Madhav J Jamadar observed –“This is a very serious case. Prima facie, the conduct of the Respondent No.2 (complainant) and the conduct of the learned Advocate Rohit Kumar amounts to interference in the administration of justice as false and fabricated affidavit is filed to oppose the grant of bail to the Applicant.”
The applicant's bail had earlier been cancelled by the sessions court based on certain WhatsApp messages, some of which contained indecent language and threats to Advocate Rohit Kumar.
Case Title: ABC and Anr. v. State of Maharashtra and Anr.
Citation: 2024 LiveLaw (Bom) 56
The Bombay High Court reduced the sentence of two men booked for forcing their 13-year-old orphaned niece to do all household chores, depriving her of food, making her sleep in the bathroom, and sexually abusing her multiple times.
The duo was convicted by the trial court for rape under section 376(2)(f)(n) of the IPC and for penetrative sexual assault under Sections 4 & 6 of the Protection of Children from Sexual Offences (POCSO) Act. They were sentenced to 10 years imprisonment.
Justice Abhay Waghwase of the Aurangabad bench observed that since the men only conclusively touched their penises to the child's vagina, it would not constitute rape. It held them guilty of sexual assault, reducing their sentence to five years of rigorous imprisonment.
Case Title: Prashant @ Sonya Ramesh Sabale v. State of Maharashtra and Anr.
Citation: 2024 LiveLaw (Bom) 105
The Bombay High Court cancelled the bail granted by Sessions Court to a man accused of extorting and defaming a child with obscene photos after finding that he had obtained bail from sessions court during the pendency of his bail application before the HC.
Justice PK Chavan noted that in the accused obtained bail from Sessions Court, Pune despite claiming in his bail application before HC that no case for bail was pending in any other court. The man is booked for offenses punishable under sections 354-D, 500, and 509 of the IPC and Sections 8, 12, 14, and 15 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, as well as Section 65-B of the Information Technology Act.
Case Title: Pradeep Hiraman Kale v. State of Maharashtra
Citation: 2024 LiveLaw (Bom) 239
The Bombay High Court upheld the removal of a Judicial Officer accused of taking a bribe to acquit an accused under the POCSO Act observing that writ courts need not grant relief to a Judicial Officer whose conduct is likely to affect the image of the judiciary.
A division bench of Justice AS Chandurkar and Justice Jitendra Jain dismissed a writ petition filed by one Pradeep Hiraman Kale challenging his removal.
“It is a universally accepted norm that Judges and Judicial Officers must act with dignity and must not indulge in a conduct or behaviour which is likely to affect the image of judiciary or which unbecoming of a Judicial Officer. If the Members of the judiciary indulge in a behaviour which is blameworthy or which is unbecoming of a Judicial Officer, the Writ Courts are not expected to intervene and grant relief to such a Judicial Officer”, the court observed.
Recording Unnatural Offence With Minor Boys | Bombay HC Grants Bail to POCSO Accused Without Prima Facie Sexual Intent
Case Title: Kapil Suresh Taak v. State of Maharashtra
Citation: 2024 LiveLaw (Bom) 311
The Bombay High Court granted bail to a man booked for allegedly stripping three teenagers, inserting fingers in the anus, abusing them and assaulting them with a leather belt.
Justice Anil S Kilor allowed the bail application of one Kapil Suresh Taak observing,
“After going through the FIR and the allegations made in the FIR against the Applicant coupled with the material collected during investigation, prima facie nothing is brought on record to show that there was any sexual intent. The case is of physical and mental torture meted out to the minor victims in the background that Applicant and other co-accused have considered them as thieves.”
Case Title: Umesh Radhai Saroj v. State of Maharashtra and Anr.
Citation: 2024 LiveLaw (Bom) 334
The Bombay High Court granted interim anticipatory bail to a man booked under the Protection of Children from Sexual Offences (POCSO) Act, 2012 for allegedly making a child record sexual activity between him and the child's mother.
Justice Manish Pitale expressed shock that these allegations were made against the mother of the child as well and decided to grant interim bail to the man so long as he does not contact the child.
Case Title: Mituram Udayram Dhurve vs State of Maharashtra (Criminal Appeal 201 of 2021)
Citation: 2024 LiveLaw (Bom) 436
In a significant ruling, the Nagpur bench of the Bombay High Court held that if a boy repeatedly follows a minor girl to talk to her, to express his love for her and then boast that one day she will accept his love, shows that his intention was not good and the same would amount to sexual harassment under the Protection Of Children from Sexual Offences (POCSO) Act.
Bombay High Court Upholds Life Sentence Of Man Convicted For Sexually Abusing Five Minor Girls
Case Title: Ramesh Gopnur vs State of Maharashtra
Citation: 2024 LiveLaw (Bom) 476
The Bombay High Court on Wednesday (September 11) upheld the conviction and the life sentence imposed on a 40-year-old man, who was convicted for sexually abusing at least five minor girls.
A division bench of Justices Revati Mohite-Dere and Prithviraj Chavan upheld the March 29, 2014 judgment of a special court in Thane, which convicted Ramesh Gopnur for raping five minor girls and sentenced him to life imprisonment under provisions of the Indian Penal Code (IPC) and the relevant provisions of the Protection Of Children from Sexual Offences (POCSO) Act.
Case Title: Vijay Jawanjal vs State of Maharashtra
Citation: 2024 LiveLaw (Bom) 493
A minor girl subjected to sexual assault would normally be 'terrified' and not 'act normal and play', the Nagpur bench of the Bombay High Court observed recently while acquitting a 64-year-old man convicted for sexually assaulting a minor girl. Single-judge Justice Govind Sanap noted from the testimony of the girl's mother that the girl was allegedly sexually assaulted by the applicant in a Samaj Mandir (community hall) and when she went to the hall, the victim girl was playing.
CALCUTTA HIGH COURT
Citation: 2024 LiveLaw (Cal) 85
Case: Subhas Mondal Vs The State of West Bengal & Anr.
The Calcutta High Court has upheld the conviction of a man under Sections 376(2)(f) and 511 IPC, for the offence of attempt to rape and Section 354 of the IPC for outraging the modesty of the 10-year-old victim girl.
It was the case of the prosecution that the accused groped the minor victim's breasts from behind and hugged her while she was returning alone from the toilet.
A single bench of Justice Shampa (Dutt) Paul also found that there was enough evidence to convict the man under Section 7 of the POCSO Act, but the same could not be applied retrospectively since the incident happened in 2010, and the Act came into force in 2012.
Case: Court On Its Own Motion Vs. XXXX(Victim Girl) & Anr
Citation: 2024 LiveLaw (Cal) 215
The Calcutta High Court has called upon the POCSO court, Murshidabad to undertake a 'discreet enquiry' into the de-facto complainant and her daughter in a POCSO case for making a false complaint and also recording a false statement under Section 164 of Cr.P.C., thereby fabricating false evidence within the meaning of Section 192 of the IPC.
A division bench of Justices Arijit Banerjee and Apurba Sinha Ray held:
"As a result of such an act, three innocent persons being the petitioners herein, have spent almost one year behind the bar, and this fact, therefore, should also be taken into account by the Learned Judge. After enquiry, if the Learned Judge, Special POCSO Court, Berhampore, Murshidabad, finds that the defacto-complainant and/or her daughter (if major) are responsible for fabrication of false evidence under Section 192 of Indian Penal Code, 1860...he shall initiate criminal proceedings against them."
CHHATTISGARH HIGH COURT
Case title – Lalchand Rohra vs. State Of Chhattisgarh
Case Citation: 2024 LiveLaw (Chh) 10
Calling it a case where 'trust was betrayed' and 'social values were impaired', the Chhattisgarh High Court last week upheld the conviction and sentence of life imprisonment for a man guilty of repeatedly raping his own daughter for 3 years.
“The accused instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust. It is a case where trust has been betrayed and social values are impaired. Therefore, the accused as such does not deserve any sympathy and/or any leniency,” a bench of Chief Justice Ramesh Sinha and Justice Arvind Kumar Verma observed.
DELHI HIGH COURT
Title: MANVIR @ MANISH v. STATE
Citation: 2024 LiveLaw (Del) 298
The Delhi High Court acquitted a stepfather who was convicted in 2015 for sexually assaulting and raping his minor daughter in 2014.
Title: VEERPAL @ TITU v. STATE
Citation: 2024 LiveLaw (Del) 455
While acquitting a man in a POCSO FIR as there were “serious flaws and gaps” in the prosecution case, the Delhi High Court has observed that a false case of an alleged child abuser suffers a blot to social stigma which is more painful than the rigours of trial and imprisonment.
Title: SONU @ SUNIL v. STATE OF NCT OF DELHI & ORS.
Citation: 2024 LiveLaw (Del) 557
The Delhi High Court has recently observed that Courts are persuaded to save lives of an accused, rather than to make him undergo trial and punishment, in cases where children, who are about to attain the age of majority, commit acts in the name of love amounting to offence under various enactments, including POCSO Act.
Title: SUNDARI GAUTAM v. STATE OF NCT OF DELHI
Citation: 2024 LiveLaw (Del) 893
The Delhi High Court held that the offences of penetrative sexual assault and aggravated penetrative sexual assault under the POCSO Act are offences regardless of the gender of the offender and can be invoked against a woman also.
Title: SAHIL v. THE STATE NCT OF DELHI
Citation: 2024 LiveLaw (Del) 903
The Delhi High Court has observed that POCSO Act is being “misapplied” as cases are being filed at the behest of the girl's family who object to her “friendship and romantic involvement” with a young boy.
Title: SUDARSHAN v. THE STATE (GOVT. OF NCT OF DELHI) & ANR.
Citation: 2024 LiveLaw (Del) 1046
While dealing with a case under the POCSO Act, the Delhi High Court has observed that vulnerable witnesses must be protected from unnecessary re-traumatization, particularly in sensitive cases.
Title: RB v. STATE NCT OF DELHI
Citation: 2024 LiveLaw (Del) 1027
The Delhi High Court has set aside a trial court order framing charges against a mother for failing to report offences under POCSO Act against her 16-year-old daughter who was allegedly raped by her father.
Case title: Mr. Sujit Kumar Vs. State (Govt. Of Nct Of Delhi) And Anr
Citation: 2024 LiveLaw (Del) 1044
The Delhi High Court has quashed a First Information Report (FIR) against a 19-year old man for offence of rape against a 17-year old girl by taking into account the circumstances of the case, including that the accused and minor had entered into sexual relations consensually, begotten a child together and that the minor's mother had no objection to the quashing of the FIR.
Title: ABHISHEK YADAV v. DELHI STATE LEGAL SERVICES AUTHORITY & ANR.
Citation: 2024 LiveLaw (Del) 1053
The Delhi High Court issued directions for disbursal of compensation to the child victims of sexual abuse under the POCSO Act by the Delhi State Legal Services Authority (DSLSA).
Title: SHUBHAM v. STATE OF NCT OF DELHI
Citation: 2024 LiveLaw (Del) 1066
The Delhi High Court has observed that “teenage love” fall in a “legal grey area” and it is debatable if it can be categorized as an offence.
Delhi High Court Issues Directions To Prevent Delay In Releasing Compensation To POCSO Survivors
Title: RAM PREET v. STATE
Citation: 2024 LiveLaw (Del) 1106
The Delhi High Court has issued directions to prevent delay in releasing compensation by the Delhi State Legal Services Authority (DSLSA) to the survivors in POCSO cases.
Title: SAIFUL KHAN v. STATE & ANR.
Citation: 2024 LiveLaw (Del) 1318
While denying anticipatory bail to a man in a POCSO case, the Delhi High Court has taken note of the “disturbing trend” of exploiting the anonymity and reach of social media platforms to perpetrate sexual crimes against minors.
Case Title: SV v. State
Citation: 2024 LiveLaw (Del) 1377
The Delhi High Court has recently ruled that victims of rape, acid attack and sexual attacks as well as POCSO cases survivors are to be provided free medical treatment in all government and private hospitals and nursing homes.
Title: MANVIR @ MANISH v. STATE
Citation: 2024 LiveLaw (Del) 298
The Delhi High Court acquitted a stepfather who was convicted in 2015 for sexually assaulting and raping his minor daughter in 2014.
GAUHATI HIGH COURT
Case Title: UB v. The State of Assam
Citation: 2024 LiveLaw (Gau) 1
The Gauhati High Court has set aside the conviction and sentence imposed on a man, for committing the alleged offence of rape against a minor under Section 376 of IPC, by the Trial Court on the ground that the evidence of the victim is not similar to the deposition of her younger sister before the court and the evidence of the medical officer who examined the victim does not indicate any incident of rape.
Case Title: State of Mizoram v. Lalramliana
Citation: 2024 LiveLaw (Gau) 23
The Gauhati High Court has made it clear that the charge of penetrative sexual assault under the POCSO Act can be invoked even on slightest penetration and it is not necessary to show victim's hymen-tear in such cases.
Case Title: The State of Assam v. Jashim Uddin Barbhuiya
Citation: 2024 LiveLaw (Gau) 26
The Gauhati High Court recently commuted the death sentence of a convict to life imprisonment on the ground that the trial court while imposing the ultimate penalty of death, failed to take into consideration the possibility of his reformation, rehabilitation and social reintegration.
Case Title: Budul Das v. The State of Assam
Citation: 2024 LiveLaw (Gau) 54
The Gauhati High Court recently upheld a conviction passed by the Trial Court under Section 4 of the POCSO Act, by observing that in case of a sexual offence, the finding of guilt can be recorded even on the basis of an uncorroborated statement of the victim provided the same is cogent and relevant.
Case Title: Jiten Ray v. The State of Assam
Citation: 2024 LiveLaw (Gau) 67
The Gauhati High Court on Tuesday upheld the conviction of a person under Section 6 of the POCSO Act on the ground that the testimony of the victim girl before the trial court was corroborated by her statement recorded under Section 164 of CrPC and therefore, found to be trustworthy in the absence of a proper medical report.
Case Title: Sh. Laldingluaia v. The State of Mizoram & Anr.
Citation: 2024 LiveLaw (Gau) 89
The Gauhati High Court at Aizwal recently set aside the judgment and sentence order passed by a Trial Court under Section 4 of the POCSO Act, on the ground the charge was framed without specifying the charge to be under 4(1) or 4(2) of the POCSO Act and the Trial Court did not put any preliminary questions to the victim child, before recording her evidence.
HIMACHAL PRADESH HIGH COURT
Case title: State of Himachal Pradesh vs XYZ
Citation: 2024 LiveLaw (HP) 37
Upholding the acquittal of a rape accused under the POCSO Act and emphasizing the right to be forgotten post-acquittal, the Himachal Pradesh High Court instructed its registry to mask the names of both the accused and the victim from its digital records.
A bench of Justice Tarlok Singh Chauhan and Justice Sushil Kukreja emphasized that the right to privacy, encompassing the right to be forgotten and the right to be left alone, is an inherent aspect of personal liberty.
Case title - Rakesh Kumar Bansal vs. State of H.P. and others
Case citation: 2024 LiveLaw (HP) 38
The Himachal Pradesh High Court observed that a teacher's inappropriate physical contact with female students, along with comments about their attire, would constitute an offence under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act 2012, which punishes acts of 'Sexual assault'.
JAMMU & KASHMIR AND LADAKH HIGH COURT
Case Title: UT of Jammu and Kashmir Vs Rahul Kumar.
Citation: 2024 LiveLaw (JKL) 51
Making a significant clarification regarding the jurisdiction of Special Courts designated under the Protection of Children from Sexual Offences Act (POCSO Act) the Jammu and Kashmir and Ladakh High Court explained that Section 31 of the POCSO Act regulates the procedure followed in Special Courts but doesn't grant them independent authority to try offences not covered under the Act.
JHARKHAND HIGH COURT
LL Citation: 2024 LiveLaw (Jha) 1
Case No. Cr. Revision No.663 of 2022
The Jharkhand High Court has ruled that engaging in persistent acts of following, watching, or contacting a child with sexual intent constitutes sexual harassment under Section 11(4) of the Protection of Children from Sexual Offences Act, 2012.
Justice Subhash Chand observed, “In the FIR itself, it has been stated that the minor victim girl of the informant was sexually harassed by the teacher of the school he used to tease her. He was also having evil eye so the complaint was made against him to the Principal of the school and he was removed from the post of teacher from that school. Thereafter, he had threatened to see them.”
Case Title: Md. Ramjani Vs The State of Jharkhand
LL Citation: 2024 LiveLaw (Jha) 48
In a recent ruling, the Jharkhand High Court emphasized that gravity of offence cannot be the ground to deny the bail application of a juvenile, unless there are exceptional circumstances as provided in the proviso to Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
Section 12 prescribes that a child alleged to be in conflict with law shall be released on bail with or without surety or placed under the supervision of a probation officer/ any fit person. The proviso states that the juvenile shall not be so released if there appears reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose the said person to moral, physical or psychological danger or the person's release would defeat the ends of justice. The JJ Board is further mandated to record the reasons and circumstances for denying bail.
Case Title: Sanjay Pandey vs The State of Jharkhand
LL Citation: 2024 LiveLaw (Jha) 55
The Jharkhand High Court has made it clear that before issuing a proclamation under Section 82 of the Cr.P.C, Court must adequately record satisfaction regarding the accused's absconding status or that accused is concealing themselves to evade arrest. It thus quashed an order passed by a Special POCSO Court.
Justice Anil Kumar Choudhary observed, “the learned Special Judge, POCSO Act Cases, Chatra has not categorically recorded its satisfaction that the petitioner is absconding or concealing himself to evade his arrest but has only mentioned that it is likely that the petitioner may evade the process of law and has not fixed any time or place for appearance of the petitioner who is the accused person of this case, this Court has no hesitation in holding that the learned Special Judge, POCSO Act Cases, Chatra has committed gross illegality by issuing the said proclamation under Section 82 of Cr.P.C. without complying the mandatory requirements of law.”
Case Title: Anukaran Kandulna V. The State of Jharkhand
LL Citation: 2024 LiveLaw (Jha) 146
The Jharkhand High Court has reiterated that sexual assaults, typically not occurring in public, do not necessitate corroboration in every instance.
The court highlighted that unless a victim's testimony contains something significantly unusual, it should not be dismissed solely for lack of medical evidence. However, the Court also stressed the necessity for vigilance to prevent false implications against the accused.
The division bench, led by Justices Ananda Sen and Gautam Kumar Choudhary, noted, “At the outset, it need to be noted that the Evidence Act is a pragmatic document and proof a fact depends upon the facts and circumstance of each case. Section 134 of the Evidence Act does not mandate any specific number of witnesses required to prove any fact and one cogent, reliable and trustworthy witness is sufficient for proof. Sexual assaults are not committed in public, and therefore, to look for corroboration in all cases will be an unrealistic pursuit. Unless there is something egregiously unusual in the testimony of a victim it cannot be discarded even if it is not corroborated by any medical evidence. However, courts need to be on guard against any false implication of the accused.”
KARNATAKA HIGH COURT
Case Title: Shrishail AND State of Karnataka
Case No: Criminal Appeal No 200241 OF 2023
Citation No: 2024 LiveLaw (Kar) 23
The Karnataka High Court recently issued guidelines to be followed by trial courts and special courts prescribing certain preliminary enquiry be made with the accused when produced for the first time in a criminal case in order to ascertain if the accused is a juvenile.
A single judge bench of Justice C M Joshi said, “There is no doubt that a Magistrate or Special Court has to make certain preliminary enquiry with the accused when produced for the first time in a criminal case during the crime stage. These enquiries are not mere formalities but they have a vital importance in ascertaining an accused to be a juvenile, mentally fit and the requirements of law are fulfilled. A child, whether an offender or not, is a child and has to be treated as a child.”
POCSO Convict Not Entitled To Benefit Under Probation Of Offenders Act: Karnataka High Court
Case Title: State of Karnataka AND Prathap
Case No: Criminal Appeal No 1335 OF 2017
Citation No: 2024 LiveLaw (Kar) 79
The Karnataka High Court has held that the benefit under the provisions of the Probation of Offenders Act, cannot be extended to a person convicted under the provisions of the Protection of Children from Sexual Offences Act (POCSO).
A division bench of Justice Sreenivas Harish Kumar and Justice Vijaykumar A Patil overturned the acquittal order passed by the trial court and sentenced Prathap to suffer three years rigorous imprisonment, under Section 8 of the Act. It observed, “The Prevention of Children from Sexual Offences Act, 2012 is a special enactment which came into force w.e.f. 20.06.2012. This enactment is subsequent to coming into force of the Probation of Offenders Act. In the case on hand the accused is liable to be punished according to section 8 of POCSO Act which prescribes a minimum sentence of 3 years imprisonment in addition to fine. Therefore, the minimum punishment has to be imposed. The provisions of the Probation of Offenders Act do not have application.”
Case Title: ABC AND State of Karnataka
Case No: Criminal Petition No 13469 OF 2023
Citation No: 2024 LiveLaw (Kar) 95
The Karnataka High Court recently quashed the criminal prosecution initiated against a 20-year old youth for allegedly marrying a minor girl and committing sexual intercourse, leading to her giving birth to a child.
A single judge bench of Justice Hemant Chandangoudar allowed the petition filed by the youth who was charged under Sections 366(A), 376(1) of the IPC and Sections 4 and 6 of the POCSO Act, 2012 and Section 9 of the Prohibition of Child Marriage Act, 2006.
Case Title: Dr Lata Krishnaraddi Mankali AND State of Karnataka
Case No: CRIMINAL REVISION PETITION NO. 100169 OF 2020
Citation No: 2024 LiveLaw (Kar) 107
The Karnataka High Court has held that Sections 19 and 21 of the Protection of Children from Sexual Offences Act puts an obligation on a doctor to inform the relevant authorities when she/he has knowledge of an offence under the Act. There is no obligation on this person to investigate and gather knowledge about the offence.
A single judge bench of Justice Ramachandra D Huddar said “The expression used is "knowledge" which means that some information received by such a person gives him/her knowledge about the commission of the crime. There is no obligation on this person to investigate and gather knowledge.”
Case Title: DR SHIVAMURTHY MURUGHA SHARANARU AND STATE BY KARNATAKA & ANR
Case NO: CRL.P 4391/2023
Citation No: 2024 LiveLaw (Kar) 122
The Karnataka High Court on Monday refused to quash rape charges against the pontiff of Murugha Mutt of Chitradurga, Dr Shivamurthy Muruga Sharanaru, who is accused of sexually abusing two minor girls staying in the hostels run by the Mutt.
However, the court quashed the order of the trial court framing charges against the accused and directed it to redraw the charges after quashing certain offences levelled against the accused.
Case Title: ABC AND State of Karnataka & ANR
Case No: CRIMINAL PETITION NO. 2020/2024
Citation No: 2024 LiveLaw (Kar) 190.
The Karnataka High Court recently granted anticipatory bail to a national-level hockey player who is charged with offences punishable under Protection of Children From Sexual Offences Act (POCSO), on the allegation of rape on false pretext of marriage.
A single judge bench of Justice Rajendra Badamikar allowed the application filed by the accused and said, “Right of Freedom is a fundamental right and merely on the basis of allegations, the Fundamental Right cannot be curtailed and the matter requires a detailed trial and if the petitioner is found guilty during the course of the trial, then the law will take its own course. However, the pre-trial detention is unwarranted as it will be a serious stigma on the character of a person.”
Case Title: Lokesh Kumar AND State of Karnataka & ANR
Case No: CRIMINAL PETITION NO. 217 OF 2024
Citation No: 2024 LiveLaw (Kar) 211
The Karnataka High Court recently granted bail to a POCSO rape accused after he and the guardian of the minor victim girl filed an affidavit in court agreeing for the accused to marry the victim immediately upon her attaining the age of majority.
A single judge bench of Justice Rajendra Badamikar allowed the petition filed by Lokesh Kumar who was charged under Section 376(2)(n) of IPC and Sections 5(L), 5(n), 5(j)(2), 6, 20 and 21 of POCSO Act, 2012.
Case Title: Nikil Sankla AND State of Karnataka & ANR
Case No: CRIMINAL PETITION NO. 4209 OF 2024
Citation No: 2024 LiveLaw (Kar) 263
The Karnataka High Court recently granted bail to a 20-year-old who allegedly, after having chats with a minor girl over Instagram, took her intimate photos, committed sexual assault and started blackmailing the victim and her family members.
A single judge bench of Justice M G Uma allowed the bail petition observing that “The petitioner is hardly aged 20 years. If he is detained in custody, there is every possibility of him coming in contact with hardcore criminals, which is not in the best interest of the petitioner.”
Karnataka HC: Minor Rape Victim's Birth Date in School Register Valid if Headmaster Testifies
Case Title: Manikanta @ Puli AND State of Karnataka & ANR
Case No: CRIMINAL APPEAL NO.1247 OF 2018
Citation No: 2024 LiveLaw (Kar) 283
The Karnataka High Court has held that entries made in school register indicating the birth date of a ward cannot be disbelieved and it is admissible evidence if the details are proved by examining the school headmaster as witness.
A division bench of Justice Sreenivas Harish Kumar and Justice C M Joshi made the observation while partly allowing the appeal filed accused Manikanta @ Pulli who was sentenced to life imprisonment for the offence under sections 376(2)(i)(n), 506 of IPC and Section 5(j)(ii)(l) r/w Sec.6 of Protection of Children From Sexual Offences Act.
Karnataka High Court Quashes Rape Proceedings Against POCSO Accused After He Marries Victim
Case Title: ABC AND State of Karnataka
Case No: CRL.P 4658/2024
Citation No: 2024 LiveLaw (Kar) 327
The Karnataka High Court has quashed rape proceedings against an accused who during the pendency of the petition seeking quashing of offence was released on interim bail to allow him to marry the victim, who turned major and gave birth to a child.
A single judge bench of Justice M Nagaprasanna quashed the proceedings initiated under sections 376(2)(n), 506 of IPC and Sections 5(L), 5(J)(II), 6 of Protection of Children from Sexual Offences Act, 2012 against the accused.
Case Title: Muniyappa AND State of Karnataka
Case No: CRIMINAL PETITION No.2418 OF 2024
Citation No: 2024 LiveLaw (Kar) 400
The Karnataka High Court has refused to quash prosecution initiated against a drawing teacher of a private school, accused of recording videos and clicking photographs of minor girl students in the residential school when they were changing their dresses.
A single judge bench of Justice M Nagaprasanna dismissed the petition filed by Muniyappa who is charged under Section 12 of the Protection of Children from Sexual Offences Act (POCSO).
KERALA HIGH COURT
Case Title: XX v. State of Kerala & Ors.
Citation: 2024 LiveLaw (Ker) 19
The Kerala High Court has issued a slew of directions to the State authorities regarding the handling of minor victims of sexual abuse, the provision of treatment including psycho therapy for prisoners accused of committing offences under the POCSO Act, and sex therapy for the victims/survivors of sexual assault.
The Single Judge Bench of Justice Gopinath P. issued the directions taking note of the report by the Project Co-Ordinator of the Victim Rights Centre (VRC) Advocate A. Parvathi Menon, whose intervention had been sought by the Court in a bail plea by a 19 year old alleged to have sexually abused his minor sister.
Case title: XXX v State of Kerala
Citation: 2024 LiveLaw (Ker) 41
The Kerala High Court quashed a sexual assault and rape complaint filed by a minor daughter under various provisions of the IPC & POCSO Act against her father on finding that it was a false complaint.
The Court found that the daughter had raised false allegations against her father since he objected to her relationship with a boy.
Justice Gopinath P quashed the criminal proceedings against the father by relying upon the mother's affidavit and a report submitted by the Victim Rights Centre that it was a false complaint.
Case Title: Anwer Hussain T v. Union Territory of Lakshadweep
Citation: 2024 LiveLaw (Ker) 46
In a matter regarding POCSO allegations against a soldier under Sections 12, 11(iv), 18, 6 and 5b(iv) of the Protection of Children from Sexual Offences Act, 2012, the Kerala High Court has observed that “allegations [against a soldier] has to be viewed more seriously. He is supposed to guard the nation, and the dignity and integrity of its citizens.”
A single bench of Justice Sophy Thomas accordingly denied the soldier/petitioner's bail plea.
Citation: 2024 LiveLaw (Ker) 129
Case title: XXX v State of Kerala
The minor was found lying unconscious in the bathroom of her house in the police quarters on March 29, 2023. While undergoing treatment, she died on May 1, 2023. The FIR No. 344/2023 was registered at the Museum Police Station, Thiruvananthapuram under Section 174 CrPC. Upon post-mortem, it was found that death was due to intracranial haemorrhage. However, it also revealed that the victim was subjected to continuous sexual abuse through vaginal and anal penetrations.
Based on the post-mortem report, another Crime No.377 of 2023 was registered at the Museum Police Station, Thiruvananthapuram under Sections 376DA (punishment for gang rape on woman under sixteen years of age), 376E (punishment for repeat offenders) and 377 (unnatural offences) of the IPC and POCSO Act. Considering the heinous nature of the offences, the investigation was carried out later on by the District Crime Branch.
Case Citation: 2024 LiveLaw (Ker) 175
Case Title: Stephen v. State of Kerala
The Kerala High Court in a recent POCSO matter rejected the appeal of an accused who was convicted for committing aggravated penetrative sexual assault on his nine-year-old daughter.
The Court also rejected the argument of the accused that the sentence imposed of 5 years under the POCSO Act, and 1 year under the IPC, was disproportionate to the gravity of the offence.
A division bench of Justices PB Suresh Kumar and Johnson John reasoned that the punishment imposed was not disproportionate to the gravity of the offence as the accused was the biological father of the 9-year-old victim.
Citation: 2024 LiveLaw (Ker) 178
Case Title: Suhaib @ Kullappi Kakka v. State of Kerala and ors.
The Kerala High Court has held that any person regardless of gender and age can be an accused under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
It thus refused to quash the proceedings pending under the Act against a minor. The bench of Justice PG Ajithkumar however clarified that the minor cannot be tried in an ordinary criminal court but can only be dealt under the provisions of the Juvenile Justice Act.
“'Penetrative sexual assault' and 'sexual assault' and its aggravated forms are defined in Sections 3, 5, 7 and 9 of the PoCSO Act. A reading of those definitions and the corresponding penal provisions indicate that any person irrespective of gender and age can be a person accused of such offences, of course, subject to the general exceptions in the IPC” observed.
Case title: Parthasarathi M v State of Kerala & Connected Cases
Citation: 2024 LiveLaw (Ker) 240
Justice K Babu held that it was not required to give evidence regarding strict proof of age for every model in child porn and stated that the Court could proceed based on the appearance of the model. The Court further held that in required cases, the expert opinion of a paediatrician or an expert in the field could be used to ascertain the age of the model.
“1. Child Pornography is punishable under Section 15 POCSO Act, Offence of Transmission or Publication of child pornography punishable under Section 67 -B Information Technology Act. These provisions to be interpreted emphasizing the viewpoint of the audience and society at large.
2. No need of strict proof of age regarding model in every case of child pornography. Relevance should be given if model appears as child.
3. Image of infant or toddler used, Court can take judicial notice and proceed by framing charges.
4. Age of child to be analysed on a case to case basis. If model appears like a child below 18 years, fact finder can conclude age without expert testimony. No need of strict proof regarding age.
5. If model appears closer to 18 years, expert opinion of paediatrician or an expert in the field to be used. If model depicts a boy or girl below 16 years, fact finder can decide based on his experience using his/her critical faculties in deciding the issue.
6. In cases of marginal nature, opinion of experts including paediatrician and forensic experts necessary to conclude on age.
7. When a party pleads special circumstances regarding age of model, the party who pleads it has the burden to prove the existence of special circumstances.
8. Prosecution need not always establish identity of model in child pornography. Insisting on identification of child and strict age proof is practically impossible to provide in all cases unlike other POCSO cases since it would defeat the intention of statute. The fact-finding on the age, being an integral part of the offence, the prosecution has to place the material before framing of charge.”
The Court was considering criminal miscellaneous cases where persons accused for offence committing child pornography had approached the Court seeking to quash the final report against them. The criminal revision petitions were filed challenging orders rejecting their applications seeking discharge. The petitioners in all these cases were allegedly accused of committing an offence under Section 15 (punishment for storage of pornographic material involving child) of the POCSO Act and Section 67 B (punishment for publishing or transmitting of material depicting children in sexually explicit act, etc in electronic form) of the Information Technology Act.
Case Title: Jerin Joy v State of Kerala
Citation: 2024 LiveLaw Ker 301
The Kerala High Court held that a child witness cannot be recalled for cross-examination by the accused to fill the lacuna or omission in their case as per Section 33 (3) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
It is to be noted that Section 33 (5) of the POCSO Act states that a child is not called repeatedly to testify in the Court.
Justice A. Badharudeen reiterated that the bar under Section 33(5) is not absolute, but it stated that a child witness can be recalled only when it is absolutely necessary to make a just decision on the case.
Case Title: Sebin Thomas v State of Kerala
Citation: 2024 LiveLaw (Ker) 376
The Kerala High Court has held that automatic or accidental downloading of children engaged in sexually explicit act or conduct is not an offence under Section 67B (b) of the Information Technology Act when the evidence shows that there was no specific intent to do so.
In the facts of the case, the petitioner was alleged to have committed offences under Section 15(2) of the POCSO Act and Section 67 B (b) of the Information Technology Act. The specific allegation was that the petitioner stored and possessed pornographic material involving child which was downloaded on his phone from Telegram.
The bench observed that no prima facie case was made out against the petitioner Section 15(2) of the POCSO Act and Section 67 B (b) of the IT Act and held thus: “In the present case, the materials collected during investigation would show that some pornographic messages, which would depict children engaged in sexually explicit act or conduct were found in the devise of the accused. But there are no materials to show that the petitioner intentionally downloaded or browsed or recorded the same. More particularly there are no materials to show that the petitioner had either shared or transmitted or propagated or displayed or distributed the same in any manner.”
Case Title: Jeffin Kuriakose v State of Kerala
Citation: 2024 LiveLaw (Ker) 413
The Kerala High Court has held that aiding committed with the 'intention' of facilitating the offence would attract an offence of abetment punishable under the POCSO Act.
Section 16 of the POCSO Act defines abetment and the punishment is provided under Section 17.
Justice P.G. Ajithkumar found that the petitioner aided the minor victim in availing a flat on rent in the presence of the accused and has intentionally facilitated the offence and could be charged under Section 17.
Case Title: XX v State of Kerala
Citation: 2024 LiveLaw (Ker) 423
The Kerala High Court has cautioned the Police officers as well as Courts to be vigilant against people with ill motivations who misuse the provisions of Prevention of Children from Sexual Offences Act (PoCSO Act) to settle personal scores.
The Court said that the Act has harsh provisions and severe punishments, and it is misused by some people to implicate innocent persons.
The Court said that the Act is misused in cases where there is rivalry in between somebody connected with minor(s). Even in matrimonial disputes, it said, minor children are used for alleging POCSO offences so the father of the child would not get custody.
Case Title: Dr. Radhakrishna S Naik v State of Kerala
Citation: 2024 LiveLaw (Ker) 451
The Kerala High Court has held that every person has to inform the police within a reasonable time as per Section 19 (1) of the POCSO Act if they have an apprehension that an offence has been committed against a minor. It held that a person will be prosecuted only when there is a deliberate omission to report the offence to the police.
Justice A. Badharudeen held that a reasonable time must be given to doctors to inform the police about such incidents.
Case Title: XX v State of Kerala and Others
Citation: 2024 LiveLaw (Ker) 453
Kerala High Court has held that an act of showing a person's private part to a child and asking her to measure it will constitute the offence of sexual harassment under the Protection of Children from Sexual Offences Act (POCSO Act).
Justice A. Badharudeen observed; “In this case, as I have already pointed out, lifting of dhothi to show his private part, and then asking the victim to measure his penis, are the allegations. The same would squarely attract Section 11(1) of the PCSO Act as well as under Section 509 IPC, prima facie.”
Case Title: Hyder Ali v State of Kerala
Citation: 2024 LiveLaw (Ker) 474
The Kerala High Court has held that there is no scope to put criminal liability on a police officer for asking the victim and her mother to come the next day to give their statement regarding an offence under the Protection of Children Under Sexual Offences Act (POCSO Act) due to there not being any woman officer at the police station.
The court said that while a police officer is criminally liable under Section 21 of the Act if he does not record the offence when he receives information regarding it, in this case, there was no wilful or deliberate omission. It also observed that the statement was recorded without much delay.
Case Title: XXX V State of Kerala
Citation: 2024 LiveLaw (Ker) 484
The Kerala High Court has cautioned the POCSO Courts to be vigilant whilst considering allegations of child's sexual abuse levelled by his/her mother against the father, especially when there are ongoing matrimonial and custody disputes between them.
Case Title: Anujith v State of Kerala
Citation: 2024 LiveLaw (Ker) 491
The Kerala High Court has held that the mode of examining a victim through the Special Court (intermediary) in a POCSO case as per Section 33 (2) of the POCSO Act remains unchanged even if the victim attains the age of majority during the trial.
Section 33 (2) of the POCSO Act mandates that the Special Public Prosecutor or the defence counsel shall give their questions to the Special Court, which will then ask those questions to the child victim during the examination. Section 33 (2) prohibits direct examination of the victim.
Case Title: XXX v State of Kerala
Citation: 2024 LiveLaw (Ker) 518
The Kerala High Court has allowed the bail applications moved by two boys aged 19 and 20 years old, cousins of a 17-year-old girl who lodged a false POCSO case against them for objecting to her love affair.
Case Title: P.C. Varghese Muthalali v State of Kerala
Citation: 2024 LiveLaw (Ker) 538
The Kerala High Court has held that the culpable mental state of the accused cannot be considered at the pre-trial stage when the prosecution makes out a prima facie case. The Court was considering whether culpable mental state under the POCSO Act could be considered at the time of discharge or quashment of the proceedings against the accused.
Case Title: V.M.Abdulkhader @ Kader v State of Kerala
Citation: 2024 LiveLaw (Ker) 562
The Kerala High Court has convicted and sentenced an accused, the father of the minor daughter, to 20 years of rigorous imprisonment for repeatedly raping and committing penetrative sexual assault upon the minor victim.
The Court passed the above order in the appeal filed by the accused challenging the order of the Special Judge for the trial of offences under the POCSO Act.
The Division Bench comprising Justice P. B.Suresh Kumar And Justice C. Pratheep Kumar ordered that the accused cannot be convicted both under the IPC and the POCSO Act and that he can be convicted for the offence providing a greater degree of punishment.
Case Title: M. J. Sojan v State of Kerala and Another
Citation: 2024 LiveLaw (Ker) 575
The Kerala High Court has quashed the criminal case filed against Superintendent of Police M. P. Sojan for making distasteful comments against the child victims in Walayar rape case.
He was booked under Section 23(1) Prevention of Children from Sexual Offences Act (POCSO Act) for making comments against the children in '24 News' channel.
The Court said that at the time of making of the comment, he did not know that it will be telecasted. It further observed that the police can consider whether to take case against the journalist, who recorded the statement and others in the channel, for telecasting it.
Case Title: Sheela v State of Kerala and Another
Citation: 2024 LiveLaw (Ker) 584
The Kerala High Court has refused to quash the criminal proceedings under POCSO Act initiated against a woman in-charge of the cottages where allegedly two minors were subjected to rape.
Justice A. Badharudeen however noted that on the alleged day of occurrence of the said crime, the license in the name of her husband had expired. At that time, the cottage was running without a valid license. The Court said that the materials collected during the investigation would prima facie show that the cottage was run by the petitioner at that time.
Case Title: Praveen Prakash v State of Kerala
Citation: 2024 LiveLaw (Ker) 606
The Kerala High Court has quashed criminal proceedings instituted against a 24-year-old man, accused of sending messages and making calls to a 17-year-old girl, causing her disturbance.
The crime was registered against the petitioner under Section 354D (stalking) of the IPC, Section 11(iv) (sexual harassment) and Section 12 (punishment for sexual harassment) of the POCSO Act.
Justice A. Badharudeen stated that there is no evidence against the petitioner to prove that he constantly sent messages or chats to the minor with 'sexual intent' to attract an offence of sexual harassment under the POCSO Act.
Case Title: XXX v State of Kerala & Connected Matter
Citation: 2024 LiveLaw (Ker) 608
The Kerala High Court has stated that neither the CrPC nor the Bharatiya Nagarik Suraksha Sanhita (BNSS) gives exception from DNA profiling on the ground that the accused and victims are siblings.
The accused and victim here are siblings, and the accused is alleged to have committed offences punishable under Sections 376, 376(3) (punishment for rape) of the IPC, Section 5j(ii) (aggravated penetrative sexual assault) and Section 6(1) (punishment for aggravated penetrative sexual assault) of the POCSO Act.
Justice A. Badharudeen dismissed the criminal miscellaneous cases filed by the accused and the victim challenging the seizure of blood samples collected for DNA profiling.
Case Title: Fisal Khan v State of Kerala
Citation: 2024 LiveLaw (Ker) 637
The Kerala High Court has stated that having sexual intercourse, after getting naked, in front of a minor child would amount to sexual harassment of a child defined under Section 11, and punishable under Section 12 of the POCSO Act.
Justice A. Badharudeen stated that exhibiting any part of the body with the intention that it would be seen by a child would amount to sexual harassment.
“To be more explicit, when a person exhibits naked body to a child, the same is an act intending to commit sexual harassment upon a child and therefore, the offence punishable under Section 11(i) read with 12 of the POCSO Act would attract. In this case, the allegation is that the accused persons engaged in sexual intercourse after being naked, even without locking the room and allowed the entry of the minor in the room, so that the minor could see the same. Thus, prima facie, the allegation as to commission of offence punishable under Section 11(i) read with 12 of the POCSO Act, as against the petitioner in this case is made out.”
Case Title: XXX v State of Kerala
Citation: 2024 LiveLaw (Ker) 644
The Kerala High Court has quashed the final report against a school principal and teacher for failing to report a sexual offence complaint received from a minor student on the same day. The Court stated that it cannot be justified to say that there was a wilful omission since the complaint was lodged with the police and FIR was registered on the next day itself.
Justice A. Badharudeen stated that it was harsh to hold that the principal and teacher were liable since they reported the crime to the police on the next day.
Case Title: Sharun v State of Kerala and Others & Conncected cases
Citation: 2024 LiveLaw (Ker) 655
The Kerala High Court has recently observed that an accused in a POCSO case is entitled to get unmasked copies of the prosecution records to effectively defend his case, while emphasizing that in such matters a balance has to be struck by courts between the "privacy of the victims" and the accused's right to defend themselves. The order was made by a single Bench of Justice A. Badharudeen.
Case Title: Ajith Prasad Edacherry v State of Kerala
Citation: 2024 LiveLaw (Ker) 736
The Kerala High Court has held that any overt act which involves a physical contact with sexual intent constitutes 'sexual assault', even if there is no penetration.
Justice A. Badharudeen noted that under Section 7 of POCSO Act, which defines 'sexual assault', includes within its ambit any other act which involves physical contact with sexual intent.
Petitioner: XXX v State of Kerala
Citation: 2024 LiveLaw (Ker) 774
The Kerala High Court has held that the trauma and shock of a mother coming to know of her minor, unmarried daughter's pregnancy is a justifiable reason for delay in informing the POCSO offence to the police.
Justice A. Badharudeen observed that in one way the mother can also be considered the victim of the crime and thus, prosecuting her under Section 19 of the Act is like “putting chilly powder on the deep wound”.
Case Title: XXX v State of Kerala
Citation: 2024 LiveLaw (Ker) 775
The Kerala High Court has observed that provisions of the POCSO Act were being misused by certain persons to wreak vengeance against their rivals with ulterior motives.
Justice A. Badharudeen observed that the Court shall exercise its powers to quash false and frivolous litigations filed with ulterior motives at the threshold by exercising its jurisdiction under Section 482 of CrPC or Section 528 of the BNSS.
[POCSO Act] Quashing Of Serious Offence To Efface Evidence Already Recorded Cannot Be Done Even At Instance Of Survivor: Kerala High Court
Case Title: xxx v State and Another
Citation: 2024 LiveLaw (Ker) 800
The Kerala High Court dismissed a petition filed by the victim of a POCSO offence to quash the proceedings saying that serious offences are involved and the trial had reached at the end stage. The Court noted that that the accused is alleged of committing serious offences like aggravated penetrative sexual assault against the minor.
The accused was the father of the victim. He is accused to have committed the offences from the period of April 2013 to 21.02.2016. The prosecution alleges commission of offence under Sections 4 r/w 3, 6 r/w 5(n)(l), 8 r/w 7 of Protection of Children from Sexual Offences Act (POCSO). It is also alleged that he threatened to kill the victim if she reveals the matter to anyone.
Case Title: Akhil Mohanan v State of Kerala
Citation: 2024 LiveLaw (Ker) 812
The Kerala High Court has held that remote chance of conviction due to compromise between the accused and the complainant should not serve as a ground to terminate investigation abruptly and to quash the FIR and further proceedings in serious offences involving POSCO Act.
Justice A. Badharudeen found that prime facie case was made out against the petitioner and declined to quash the criminal proceedings under the POCSO Act based on the girl's affidavit for settlement.
MADHYA PRADESH HIGH COURT
title - Prahalad Gujar Vs. State Of Madhya Pradesh
Case Citation: 2024 LiveLaw (MP) 41
The Madhya Pradesh High Court had observed that the act of taking a 6-year-old child into a closed room, placing her on one's lap, and rubbing her thigh is indicative of the sexual intention of the accused, thereby constituting an offence under the POCSO Act. Justice Prem Narayan Singh, presiding over the bench, emphasized that what constitutes 'outraging of female modesty' is nowhere defined, but the essence of a woman's modesty is her sex and the culpable intention of the appellant is the crux of the matter.
The Court further added that a woman's reaction holds significance, still, its absence may not always be decisive and this principle holds even more weight in the case of a 6-year-old child, wherein, to ascertain the accused's intention, the actions and behaviour of the accused become crucial factors to consider.
These observations were made by the single judge while affirming a judgment of Additional Sessions Judge, Bhanpura convicting the accused for the offence punishable under Section 363 of the IPC and Section 9(M)/10 of the POCSO Act and sentencing him to undergo 5 years RI.
As per the prosecution's case, on January 31, 2020, the mother of a 6-year-old girl (victim) lodged a police report against the accused stating that he abducted her (prosecutrix) and took her to his home where the appellant touched the prosecutrix illegally to outrage her modesty.
Case Title: Harchand Gurjar v. The State Of Madhya Pradesh & Ors.
Citation: 2024 LiveLaw (MP) 160
While hearing a habeas corpus plea, the Madhya Pradesh High Court raised a question about the welfare of child victims of sexual offences, children leaving home out of quarrels and children in need of care and protection.
To mentor, guide and encourage such children who come back home after undergoing mental and emotional trauma, the Division Bench of Justices Anand Pathak and Rajendra Kumar Vani has floated a scheme called 'Shaurya Didi'.
Case title: Dr. Jaya Panwar Versus The State Of Madhya Pradesh
Citation: 2024 LiveLaw (MP) 202
The Madhya Pradesh High Court has rejected the anticipatory bail application of a senior school teacher accused of harassing students by disrobing them and making objectionable videos under the pretext of mobile phone checks.
The bench of Justice Prem Narayan Singh at Indore also noted that the prosecuting agency failed to invoke provisions of the POCSO Act and directed the Police Commissioner, Indore to examine the matter.
Case title: Juvenile In Conflict With Law Through His Natural Parent And Guardian Versus The State Of Madhya Pradesh
Citation: 2024 LiveLaw (MP) 219
The Madhya Pradesh High Court at its Indore bench, granted bail to a 14-year-old juvenile accused of sexual assault under IPC Section 376(ab) and the POCSO Act.
Justice Sanjeev S. Kalgaonkar presided over the case and stated that the fundamental principles of care and protection of children as per Section 3 of the Juvenile Justice Act, included the presumption of innocence, dignity and worth, best interest, and family responsibility. The court reiterated that the gravity of the offence should not be the sole criterion for denying bail to a juvenile.
Case Title: Babulal Singh Gond Versus The State Of Madhya Pradesh
Citation: 2024 LiveLaw (MP) 223
While hearing a Protection of Children from Sexual Offences (POCSO) Act case where evidence on a DNA report was not taken, the Jabalpur bench of the Madhya Pradesh High Court said that both the trial court and the Additional District Public Prosecutor (ADPO) are "prima facie" guilty of negligence and dereliction of duty.
MADRAS HIGH COURT
Case Title: S Harish v Inspector of Police and Another
Citation: 2024 LiveLaw (Mad) 17
Setting aside the criminal proceedings initiated against a man, the Madras High Court recently observed that watching child pornographic videos will itself not attract offences under the Protection of Children from Sexual Offences (POCSO) Act.
Justice Anand Venkatesh noted that to attract the offences under the POCSO Act, a child or children must have been used for pornography purposes. In the present case, the court noted that accused had watched pornography videos but had not used a child or children for pornographic purposes. This, in the opinion of the court, could only be construed as a moral decay on the part of the accused person.
With respect to the charges under Section 67B of the IT Act, the accused must have published, transmitted, and created materials depicting children in sexually explicit acts or conduct. The court added that the section did not make child pornography, per se, an offence. Thus, the court noted that the Act did not cover a case where a person had merely downloaded child pornography in his electronic gadget and watched the same without doing anything more.
Case Title: Sujithkumar @ Sonaimuthu v State
Citation: 2024 LiveLaw (Mad) 40
The Madras High Court recently set aside the conviction and sentence imposed on a man accused of allegedly committing sexual assault on his neighbour on the false promise to marry.
Justice KK Ramakrishnan observed that the prosecution had failed to prove the age of the victim girl to constitute an offence under the Prevention of Children From Sexual Offences (POCSO) Act.
Case Title: Balaji @ Panai Balaji v State
Citation: 2024 LiveLaw (Mad) 217
The Madras High Court recently quashed the criminal proceedings initiated under the Protection of Children from Sexual Offences Act against a 21-year-old man who had eloped with a 18 year old girl.
Calling it a case of Romeo and Juliet which ended successfully in marriage, Justice G Jayachandran noted that the inherent power of the court under Section 482 of CrPC was meant for cases like this to meet the ends of justice. The court added that if the prosecution was not quashed, it would create vulnerability to the girl and force her exploitation, which was intended to be prevented under the POCSO Act.
Case Title: Dharani v State
Citation: 2024 LiveLaw (Mad) 325
In an unusual order, the Madras High Court has invoked its extraordinary jurisdiction in a habeas corpus case, to quash the criminal proceedings initiated against a woman under the Protection of Children from Sexual Offences (POCSO) Act.
The bench of Justice MS Ramesh and Justice Sunder Mohan were hearing an HCP filed by a woman for producing her 5-and-a-half-year-old daughter. The woman had alleged that her elder sister and mother were refusing to hand over the daughter's custody to her.
After granting custody to the woman, the court went a step further and examined the POCSO proceedings initiated against her on the complaint of the sister and the mother. Noting that a scheming attempt had been made by the sister and mother to get custody of the minor child, the court observed that there was not an iota of legally permissible evidence against the woman to proceed under the POCSO Act.
Case Title: Tamil Selvan v State
Citation: 2024 LiveLaw (Mad) 338
While refusing to set aside the conviction of a sports teacher who was convicted for harassing a 12th Standard student during a State-level match, the Madras High Court remarked that the right to enjoy a safe and supportive sports environment is a fundamental right of every female sports person.
Justice KK Ramakrishnan noted that as per a report published by the Ungender titled 'Sexual Harassment in Sports in India', sexual harassment was at an all-time high. The court noted that perpetrators of such crimes had to be suitably dealt with. Noting that a prompt law to deal with such issues was required, the court issued directions to the Chief Secretary to the Government of Tamil Nadu to address the issue of protection of women participants in sports from sexual harassment in the interest of sports education and transparent participation of women in sports.
The court also directed the State Government to permit either parents or guardians of the girl participating in state competition to accompany them at state cost to prevent harassment.
Case Title: Suo Motu v The Deputy Commissioner of Police
Citation: 2024 LiveLaw (Mad) 372
The Madras High Court has ordered the Central Bureau of Investigation to take up the investigation of a case relating to the sexual assault of a minor girl in Anna Nagar in Chennai.
Justice SM Subramaniam and Justice V Sivagnanam asked the CBI to take over the case as the court was not satisfied with the manner in which the investigation was being carried out by the State police. The court noted that the victim's examination was conducted in the busy corridors of the Kilpauk Government Medical College and her parents were allegedly beaten up in the police station while the alleged accused was given a chair to sit.
The court also noted that the video and audio of the examination of the witness were publicized online and instead of finding the person who had shared the files in the first place, the police had merely registered FIRs against a Youtuber and a Journalist who had shared the files and who talked about the incident.
Case Title: R. v The State
Citation: 2024 LiveLaw (Mad) 462
The Madras High Court recently asked the State Government to take "serious efforts" to enact laws imposing "severe punishments" in cases of sexual offences by family members or close friends involving children.
In doing so the court further said State should take measures for providing awareness programs and provide funds for opening protection homes for children to protect them from sexual offences. The court said so while noting that "in our country", number of children faced sexual assault by close relatives "viz., father, brother, uncle, grandfather or close family friends" and that studies had revealed that sexually abused children experience clinically significant symptoms in the affective, cognitive, physical, and behavioral domains.
The court made the observation while dismissing a man's appeal who was convicted and sentenced for sexually abused his step daughter and impregnated her. The court took note of the “shocking” news reports that as per the National crime Records Bureau, in 96% of the cases, the sexual abusers were known to the children. The court added that in most of these cases, the offenders took advantage of their dominating position and sexually abused the children under threat or coercion
Case Title: Aathimoolam v State and Another
Citation: 2024 LiveLaw (Mad) 471
While refusing to set aside the criminal proceedings initiated against a school headmaster, the Madras High Court emphasised that the Headmaster was the guardian of the entire school and was expected to report any instances under the Protection of Children from Sexual Offences Act.
Justice P Velmurugan observed as under,
“The Head Master is the guardian of the entire school. If any incident covered under POCSO Act has taken place, the same has to be immediately intimated either to the District Child Protection Officer or to the Police concerned,” the court said.
ORISSA HIGH COURT
Case Title: Dabu @ Santosh Kumar Munda v. State of Odisha
Citation: 2024 LiveLaw (Ori) 22
The Court expressed anguish over disclosure of names of victims of sexual offences in case records/deposition sheets despite clear statutory mandate against mentioning the same, which has been endorsed and reiterated by the authoritative pronouncements of the Supreme Court time and again. While pointing out the error committed by the trial Court Judge, the Single Bench of Justice Sangam Kumar Sahoo ruled that a noting should be given in the deposition sheet so also in the order sheet of the day regarding taking of signature of the victim in a separate sheet and keeping the same in sealed cover. The said procedure should also be followed while recording statement of the victim under Section 164 of CrPC In the judgment, it emphasised, the name of the victim should never be mentioned by the concerned presiding officer.
Case Title: Rojalin Rout & Anr. v. State of Odisha & Anr.
Citation: 2024 LiveLaw (Ori) 29
The Orissa High Court expressed concerns about the misuse of the provisions of the POCSO Act, especially by way of prosecution of young males in cases of mutual adolescent romantic relationship. While allowing a batch of petitions praying to quash criminal proceedings under the stringent legislations, the Single Bench of Justice Sibo Sankar Mishra observed–
“The POCSO Act was enacted with the ultimate objective of prohibiting non-consensual and forced sexual relationships with children, including child sexual abuse and sexual harassment. While the stringent provisions of the POCSO Act have contributed positively to reducing instances of sexual violence against children, they have also led to an increase in vindictive litigation, with false cases being filed against individuals under the act. However, it was never the legislature's intention to prosecute romantic relationships between young adults.”
Case Title: State of Odisha v. Mohammed Mustak
Citation: 2024 LiveLaw (Ori) 36
The Court commuted the capital punishment awarded to a man who was convicted by the trial court for committing rape and murder of a 6-year-old girl in 2018. While sentencing him to life, the Division Bench of Justice Sangam Kumar Sahoo and Justice Radha Krishna Pattanaik observed –
“No material has been produced before us by the learned State counsel that there is no possibility of reformation and rehabilitation. 'Every saint has a past and every sinner has a future' - strikes a note of reformatory potential even in the most ghastly crime. Human endeavour should be to hate the sin and not the sinner. There is still life in life sentence and only death in death sentence.”
Case Title: Tapas Swain @ Tapas Kumar Swain v. State of Orissa & Anr.
Citation: 2024 LiveLaw (Ori) 45
The Orissa High Court reiterated that there is no absolute bar to recall a child victim under the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') for the purpose of further cross-examination by the accused. Reaffirming the position of law, the Single Bench of Justice Sibo Sankar Mishra observed there is no absolute bar under Section 33(5) of the POCSO Act to recall a victim-witness and every case has to be weighed on the strength of its own evidence and necessity of recalling the child victim. However, the intention of the legislator is to ensure that the victim shall not be called repeatedly to the Court in the guise of cross-examination, which would add to the ordeal.
Case Title: State of Odisha v. Sk. Asif Alli @ Md. Asif Iqbal & Anr.
Citation: 2024 LiveLaw (Ori) 46
The High Court, while answering death reference of two persons, acquitted one of them and commuted the capital punishment imposed on the other. The two were convicted and sentenced to the extreme penalty of death in 2022 for committing murder of a six-year-old girl, after subjecting her to rape. Upon perusing the reports and affidavits submitted by the jail authorities, the Division Bench of Justice Sangam Kumar Sahoo and Justice Radha Krishna Pattanaik further observed –
“Even though he is in judicial custody for about ten years, but the reports submitted by Jail Superintendent and the Psychiatrist indicate that his conduct and behaviour inside prison is normal, his behaviour towards co-prisoners as well as staff is cordial and he is maintaining every discipline of the jail administration. Neither there is any adverse report against him during the entire period of confinement nor he has committed any prison offence. He is offering prayer to God many times in a day and he is ready to accept the punishment as he has surrendered before God.”
Case Title: BPB v. State of Odisha
Citation: 2024 LiveLaw (Ori) 74
The Orissa High Court reduced the period of detention of a child in conflict with law (CCL) who was found guilty for committing forcible anal intercourse on a four year old boy and was ordered to be detained in a place of safety for two years. While affirming the guilt but lessening the period of detention, the Single Bench of Dr. Justice Sanjeeb Kumar Panigrahi held –
“It appears that the occurrence took place on 04.12.2022 and since the date of occurrence, the Petitioner/CCL is in custody for substantial period. Only three to four months only remain to be complete and undergo the sentence. Considering such circumstance, this Court is of the view that it shall not be desirable to keep the Petitioner/CCL in jail. Therefore, sentencing the Petitioner/CCL to undergo the sentence already suffered by him shall serve the ends of justice.”
PATNA HIGH COURT
Case Title: Md. Mahmood Alam vs The State of Bihar
LL Citation: 2024 LiveLaw (Pat) 110
The Patna High Court has ordered the release of a man in his sixties, previously convicted by a Sessions Court for the rape of his 12-year-old niece, citing the application of a wrong provision of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
The court held that the trial court erroneously sentenced the appellant under Section 6 of the Act, which was not applicable to the offense committed in 2014.
The division bench, comprising Justices Jitendra Kumar and Ashutosh Kumar observed, “we find that learned Trial Court has applied wrong statutory provisions to punish the convict/appellant by sentencing him under Section 6 of the POCSO Act and sentencing him to rigorous imprisonment for the remainder of natural life. Learned Trial Court has not noticed the facts that the alleged offence has been committed in the year 2014 and at that time there was no such punishment in Section 6 of the Act.”
Case Title: Pramod Mandal vs The State Of Bihar
LL Citation: 2024 LiveLaw (Pat) 83
While allowing an appeal against an order convicting a man for sexually assaulting a 5-year-old girl in 2019, the Patna High Court said that the evidence of the child who witnessed the alleged incident and supported the prosecution's case was not reliable as Trial Court had not tested the child's "capacity to depose" prior to his deposition.
The high court further said that the prosecution had failed to prove the foundational facts of the alleged offences beyond reasonable doubt, adding that the man could not be convicted based on "feeble evidence" of child witness.
A division bench of Justice Jitendra Kumar and Justice Ashutosh Kumar in its order observed, “From perusal of the aforesaid evidences, we clearly find that the prosecution case is supported neither by the victim nor her parents against the appellant. Though, injury has been found on the private part of the victim but whether this injury has been caused by rape by the appellant could not be proved by the prosecution beyond reasonable doubt. There is not a single word against the appellant in the evidence of the victim or her parents".
Case Title: Soni Kumari & Anr. Versus The State of Bihar
LL Citation: 2024 LiveLaw (Pat) 115
The Patna High Court today (Sept 3) upheld the acquittal of the accused who was charged with committing an offence of rape on the 14 years old female child after the prosecution case was not able to prove the accusations beyond the reasonable doubt.
It was the case of the prosecution that the accused had entered into the courtyard of the victim and forcibly took her to the room. When she raised her voice, her mouth was closed by him by putting his hand and he started committing rape upon her. It was only when the father of the victim heard the cry of the victim that he entered the room and saved the victim. In between this, when the accused tried to escape the place he was surrounded by the neighbours who caught him and was taken to police.
Case Title: Manjit Ram @ Manjit Kumar Versus The State of Bihar & Anr.
Citation: 2024 LiveLaw (Pat) 60
While deciding a POCSO case, the Patna High Court on Tuesday (July 23) reiterated that the prosecution would not be absolved from proving the guilt of the accused beyond reasonable doubt despite the presumption of committing an offence operating against the accused under Section 29 of POCSO Act.
The Court said that irrespective of the fact that there exists a presumption against the accused, the prosecution would still be required to prove the foundational facts regarding the allegation of sexual assault against the appellant beyond reasonable doubt.
Case Title: Munna Ansari Vs The State Of Bihar Bihar
LL Citation: 2024 LiveLaw (Pat) 16
The Patna High Court has overturned a judgment of conviction and order of sentence under the Protection of Children from Sexual Offences Act (POCSO), while stressing the importance of establishing a clear and unerring chain of circumstances pointing unequivocally to the guilt of the accused.
The division bench of Justices Alok Kumar Pandey and Ashutosh Kumar underscored, "We can test the material of present case on the circumstantial evidence as there is no eye witness account of the present case but each circumstance (which may be relevant facts or fact in issue) should be proved beyond reasonable doubt and the proved circumstance must form complete chain. The chain of circumstances must unerringly point towards the guilty of the accused i.e. it should be only reasonable probability of causation of offence."
PUNJAB AND HARYANA HIGH COURT
Citation: 2024 LiveLaw (PH) 34
Title: State of Haryana v. XXXX
The Punjab and Haryana High Court has commuted the death sentence imposed on a man convicted for raping his own minor daughter, considering that he belonged to a marginalised part of the society.
A division bench of Justice GS Sandhawalia and Justice Lapita Banerji said, "No doubt that the act as such is horrific and there can be no sympathy shown on the account of the fact that the accused has two more children..."
Citation: 2024 LiveLaw (PH) 62
Title: Axx v. STATE OF HARYANA AND ANOTHER
The Punjab & Haryana High Court has made it clear that any person knowing about the commission of an offence against a child under the Protection of Children from Sexual Offences (POCSO) Act must inform the police or Special Juvenile Police Unit (SPJU) irrespective of whether the concerned person is a parent of the child or friend. The Court was hearing a plea of a victim's mother seeking quashing of an application pending before the trial court to add her as an accused, for failing to report the sexual harassment of her son to the police.
Application Of Statutes Must Be Based In Reality: Punjab & Haryana HC Quashes POCSO Case Against Youth For Consensually Impregnating Minor Wife
Citation: 2024 LiveLaw (PH) 85
Title: XXX v. State of U.T. Chandigarh and Others
The Punjab & Haryana High Court has quashed a rape case against a husband who was accused of committing sexual intercourse consensually with his minor wife, observing that application of statutes like the Protection of Children from Sexual Offences Act, 2012 (POCSO) cannot be divorced from the reality of the situation. A young couple visited a government hospital, where doctors found that the minor wife was pregnant and reported it to the police in view of Section 19 of the POCSO Act. It was stated that the couple was married with the blessings of their families and there were not any accusations against the husband. However, an FIR was registered and the man was arrested.
Not Safe To Rely On DNA Report In Absence Of Evidence Regarding How Samples Were Collected: P&H High Court Acquits POCSO Rape Convic
Citation: 2024 LiveLaw (PH) 88
The Punjab & Haryana High Court acquitted a man convicted of raping a minor girl, observing that there was "an important break in the chain of link evidence to prove that the vaginal swabs" were taken for medical examination of the alleged victim. While setting aside the conviction under the Protection of Children from Sexual Offences (POCSO) Act, Justice Manisha Batra said, "It was for the prosecution to rule out the possibility of the samples being contaminated or tampered with. In the absence of evidence how the samples were collected as well as the fact that they were properly preserved or not, it will not at all be safe to rely upon the DNA report."
POCSO Act Prevails Over Muslim Law: Punjab & Haryana High Court Denies Pre-Arrest Bail To Man Accused Of Kidnapping Minor Wife
Title: XXX v. XXX
Citation: 2024 LiveLaw (PH) 123
Rejecting the contention that the man had married under the Muslim Personal Law, the Punjab & Haryana High Court has denied anticipatory bail for allegedly kidnapping his minor wife. Justice Harpreet Kaur Jeewan said, "Protection of Children from the Sexual Offence Act, 2012, has been enacted which is a self contained comprehensive legislation inter alia to provide for protection of children from offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process."
12-Yr-Old Sexual Assault Victim Wouldn't Be Able To Mentally Comprehend Crime, Delay In Lodging FIR Not Fatal To Case: Punjab & Haryana High Court
Title: XXX v. XXX
Citation: 2024 LiveLaw (PH) 213
The Punjab & Haryana High Court has dismissed the appeal file against the conviction for sexual assault committed under the Protection of Children from Sexual Offences Act (POCSO Act) on 12-year-old girl, observing that, seven days delay in lodging the FIR is not fatal to the case. Justice Nidhi Gupta said, "It has to be understood that upon having been sexually assaulted by the appellant, the 12-year-old victim child would not have been able to mentally comprehend the nature of what had been done to her. Though the victim could narrate and describe what had been done to her as, at that age there is no sense of shame attached to the act, however, it would not have been possible for the victim to mentally understand or comprehend the crime committed upon her."
[POCSO] Accused's DNA Not Matching With Victim's Vaginal Swab, Absence Of Semen Doesn't Rule Out Penetrative Sexual Assault: P&H High Court
Case: XXX v. XXX
Citation: 2024 LiveLaw (PH) 216
The Punjab & Haryana High Court has said that non-matching of the DNA of the accused with the vaginal swab of the alleged victim and the absence of semen from the vaginal swab would not rule out the offence of “penetrative sexual assault” under the Protection of Children from Sexual Offences Act (POCSO) when the victim has supported her version in a recorded statement.
Justice Harpreet Kaur Jeewan said, "Keeping in view the elaborate definition of the offence of penetrative sexual assault, non-matching of the DNA of the petitioner- accused with the vaginal swab of the victim and absence of human semen from the vaginal swab of a female victim would not rule out the offence of “penetrative sexual assault” wherein the minor victim had supported her version in a statement recorded under Section 164 Cr.P.C., given her history before the Medical Officer regarding sexual assault and there is a prima facie medical opinion by the doctor that the offence sexually abusing cannot be ruled out in the medical report."
Cannot Say That 15 Yr-Old Victim Did Not Know Repercussions Of Statements Given By Her: P&H High Court Suspends Conviction In Rape Case
Title: XXXXX v. State Of Haryana
Citation: 2024 LiveLaw (PH) 267
The Punjab & Haryana High Court has suspended the conviction against a man convicted for committing rape on a minor, observing that the alleged 15 and a half year old victim turned hostile in the Trial Court.
During the proceeding the counsel for the convict submitted that the prosecutrix turned hostile in the Court and resiled from her earlier statement supporting the prosecution's case which she stated to have been recorded under duress.
POCSO | Ejaculation Of Semen Not Required To Prove Penetrative Sexual Assault: Punjab & Haryana High Court
Title: XXXX v. State of Punjab
Citation: 2024 LiveLaw (PH) 294
The Punjab & Haryana High Court upheld the conviction of rape and penetrative sexual assault against a minor under the Protection of Children from Sexual Offences Act, 2012 (POCSO), observing that the presence of semen is not required to be proved for penetrative sexual assault. Justice Sureshwar Thakur and Justice Kuldeep Tiwari said, "When in the event of penetrative sexual assault becoming committed, upon a minor victim, thus does not require ejaculation of semen into the vagina of the minor victim. Resultantly, thereby the absence of any inculpatory semen in the vaginal swab of the minor victim also does not over-rule the evidentiary efficacy of the testification of the prosecutrix."
Punjab & Haryana High Court Allows POCSO Accused To Examine UIDAI Official To Disprove Age Of Prosecutrix Based On Aadhar Card Details
Case Title: Jamshed v. State of Haryana and others
Citation: 2023 LiveLaw (PH) 294
The Punjab & Haryana High Court has allowed a man accused of rape and aggravated penetrative sexual assault under Protection of Children from Sexual Offences (POCSO) to examine an official of UIDAI, in an attempt to show that the prosecutrix is not a minor.
In the present case, the accused sought directions to summon a UIDAI official to produce Aadhar details of the prosecutrix, aiming to establish that she was not a minor, and hence a case under POCSO is not made out. However, the State argued that Aadhar cannot be used to verify the date of birth as it is based on self-declared information.
Child's Testimony Can't Be Brushed Aside, Punjab & Haryana HC Upholds Teacher's Conviction For Sexually Assaulting Student In School
Title: XXXXX v. State of Haryana
Citation: 2023 LiveLaw (PH) 322
The Punjab and Haryana High Court has upheld the conviction of a school teacher for sexually assaulting a class 8th student under Protection of Children from Sexual Offences Act, 2012 (POCSO Act), while noting that the "occurrence took place in school premises." Justice Amarjot Bhatti said, "as per facts of the case, it is fully covered under the provisions of Section 9 (f) of POCSO Act as victim was sexually assaulted by appellant/convict Sanjay Kumar while he was posted as Hindi Teacher and the victim was studying in the same school in 8th standard. Occurrence took place in the school premises. Therefore, considering the facts of the case, it is a case of aggravated sexual assault and he was rightly held guilty under Section 10 of the POCSO Act."
POCSO Act Being Enacted Subsequently Will Prevail Over SC/ST Act In Case Of Conflict: Punjab & Haryana High Court
Case Title: XXXX v. State of Haryana
Citation: 2023 LiveLaw (PH) 331
The Punjab & Haryana High Court has reiterated if there is a conflict between the provisions of POCSO Act and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, then provisions of the POCSO Act will be applicable as it was enacted subsequently.
It also reaffirmed that a regular bail plea moved in a case registered under the provisions of the two special legislations is maintainable before the high court.
POCSO Act | Absence Of Semen In Penetrative Sexual Assault Will Not Weaken Victim's Testimony: Punjab & Haryana High Court
Title: XXX v. XXX
Citation: 2023 LiveLaw (PH) 311
The Punjab and Haryana High Court has said that in case of penetrative sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012, victim's testimony cannot be question merely on the ground that no semen is detected in the DNA report. Bench of Justice Sureshwar Thakur and Justice Sudeepti Sharma said, "when in the event of any penetrative sexual assault becoming committed, upon a minor victim, thus does not require semen being detected on the vaginal swabs of the prosecutrix. Resultantly, thereby the absence of any inculpatory semen on the vaginal swab of the minor victim also does not over-rule the evidentiary efficacy of the testification of the prosecutrix."
POCSO Case | High Court Grants Relief To Journalist Chitra Tripathi, Sets Aside Gurugram Court's Arrest Warrants
Title: XXX v. XXX [FAO-3869-2014 (O & M)]
Citation: 2024 LiveLaw (PH) 336
Observing that "the marriage between partners, is a personal contract", the Punjab & Haryana High Court has refused to allow a mother to represent his deceased son in a divorce plea. Justice Sureshwar Thakur and Justice Sudeepti Sharma said, "the marriage between marital partners, but obviously is a personal contract entered into between the spouses. The said contract remains alive only during the life span of the contracting parties, therebys the said contract terminates on the demise of one of the parties to the marital union."
Presumption Of Guilt U/S 29 Of POCSO Act Can't Be Drawn Due To Lack Of Evidence: Punjab & Haryana HC Sets Aside Rape Conviction
Case Title: V v. State of Haryana and another appeal
Citation: 2024 LiveLaw (PH) 427
The Punjab & Haryana High Court has acquitted two men in a sexual assault case under the Protection of Children from Sexual Offences (POCSO) Act, observing that the presumption under Section 29 for abetting or attempting to commit certain offences under the Act cannot be drawn on account of lack of evidence. As per Section 29 of the POCSO Act, where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3(Penetrative sexual assault), 5(Aggravated penetrative sexual assault), 7(Sexual assault) and section 9(Aggravated sexual assault) of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
'Monster Like Conduct': Punjab & Haryana High Court Confirms Death Penalty Of Man Convicted For Rape And Murder Of Minor Girl
Title: XXXX v. XXXX
Citation: 2024 LiveLaw (PH) 432
The Punjab & Haryana High Court on Thursday confirmed death sentence of a man convicted for the rape and murder of a 3-year-old girl in 2018, observing that the "gruesome murder" of a girl child after committing rape upon her is an example of "monster like conduct of the convict." A division bench of Justice Sureshwar Thakur and Justice Sudeepti Sharma agreed with the reasoning given by the Trial Court in its February order where it opined that the case falls in the rarest of the rare case. The high court went through the trial court's reasoning and said that the observations were "well made" wherein the trial judge had sentenced the convict to capital punishment adding that it appeal's to the judicial conscience of the high court.
RAJASTHAN HIGH COURT
Title: G.K v. State of Rajasthan Through Chief Secretary & Ors.
Citation: 2024 LiveLaw (Raj) 2
Rajasthan High Court clarified recently that minor rape victims can avail the benefit of the amended provision in Section 357A of CrPC, even if the alleged incident occurred before the amendment in 2009.
While partly allowing the writ petition filed by the father of the victim girl who was subjected to rape at the age of two years, the court ordered that the State must compensate the victim with an amount of Rs 3,00,000/- as stipulated in the Rajasthan Victim Compensation Scheme, 2011, framed pursuant to the enactment of Section 357A CrPC.
The single judge bench of Justice Anoop Kumar Dhand further added that the general mandamus issued in this case would only apply to all those victims who presented a claim in this regard to the competent authorities prior to the amendment in 2009.
Title: Victim v. State of Rajasthan & Ors
Citation: Citation: 2024 LiveLaw (Raj) 10
Stating that a fully developed foetus has the right to life guaranteed under Article 21, Rajasthan High Court declined a plea for the medical termination of an 11-year-old rape survivor's advanced pregnancy.
The single-judge bench of Justice Anoop Kumar Dhand also clarified that a foetus that is fully developed has the right to enter this world and live a healthy life without any abnormalities. Concurring with the report of the Medical Board, the bench sitting at Jaipur observed that termination of pregnancy is not advisable at all in a stage where the foetus has a fully formed brain and lungs, along with heartbeats.
Though the State and the petitioner urged the court to allow the delivery of the minor survivor immediately through the process of inducing labour, the court refused to grant such a relief.
Title: Asha Ram @ Ashumal v. State of Rajasthan & Ors.
Citation: 2024 LiveLaw (Raj) 16
Rajasthan High Court refused to grant 20 days parole to self-styled godman Asaram Bapu, who is currently serving a life sentence in Central Jail, Jodhpur after two rape convictions in Rajasthan and Gujarat respectively.
The District Parole Advisory Committee, Jodhpur (DPAC) had rejected his application for the first grant of parole on 22.08.2023. Before that, another application was rejected by DPAC on 20.06.2023.
A Division Bench comprising Chief Justice Manindra Mohan Shrivastava and Rajendra Prakash Soni concurred with DPAC's decision to deny parole since such an application could not be accepted under Rule 1 (3) of the Rajasthan Prisoners Release on Parole Rules, 2021.
Rajasthan High Court Quashes POCSO Case On Being Informed Of Victim's Marriage With Accused
Citation: 2024 LiveLaw (Raj) 17
Rajasthan High Court decided to rescind criminal proceedings against a POCSO accused, after being informed that the victim/survivor is living a happily married life with the former.
Before quashing the rape case ongoing before Jaipur Metropolitan I Special Judge (POCSO), the single judge bench of Justice Mahendar Kumar Goyal observed that the survivor herself has stated before the court about the marriage between her and the accused.
“From the material available on record, it is established that the petitioner and the respondent no.3 have solemnized marriage and are living a happily married life with a three-year-old girl child born out of their relationship. The parties are present in the court and this court has also verified the aforesaid…”, the bench sitting at Jaipur added.
Title: Moti Ram V. State of Rajasthan, Home Department & Ors
Citation: 2024 LiveLaw (Raj) 38
While directing a POCSO convict not to enter the village where the victim resides for the duration of parole granted, Rajasthan High Court opined that the absence of such a safeguard will adversely affect the mental well-being of the survivor/victim.
The Division Bench comprising Justices Dinesh Mehta and Rajendra Prakash Soni observed that if the victim were to face the convict during parole, he/she would be forced to revisit the trauma caused by the convict. The court also added that such a scenario would remind the victim of the incident she is trying hard to forget.
“The Court is mindful of the legislative intent of the POCSO Act which provides that the contact between the accused and the victim should be prevented in order to minimise the trauma experienced by the child…”, the bench sitting at Jodhpur noted in the order.
Title: Rohit Bairwa v. State of Rajasthan & Anr.
Citation: 2024 LiveLaw (Raj) 55
Expressing concern about a situation where the identity of a rape victim was disclosed during investigation and trial, Rajasthan High Court proposed an exercise of sensitization for the police officers and judicial officers to ensure that such instances do not repeat.
The single judge bench of Justice Anoop Kumar Dhand noted in the order that the mandatory requirement of Sections 24(5), 33(7) of the Protection of Children from Sexual Offences Act (POCSO) and Section 228-A of the Indian Penal Code is not being adhered to in many cases.
“In this background, the court feels that an exercise of sensitization of the police officers and judicial officers is required to be undertaken so as to ensure strict compliance of the mandatory provisions of law and its requirements,” the bench sitting at Jaipur opined.
Title: Narayan Lal v State of Rajasthan
Citation: 2024 LiveLaw (Raj) 149
The Rajasthan High Court granted bail to an accused charged for rape under IPC as well as POCSO Act, primarily looking at a representation made by the prosecutrix to the Superintendent of Police that revealed that the rape case was merely a façade created by her to malign her own image so that her husband abandons her.
Title: Dinesh Kumar v State of Rajasthan & Anr.
Citation: 2024 LiveLaw (Raj) 183
The Rajasthan High Court made it clear that a minor rape victim's refusal to undergo medical examination alone cannot be the basis to disbelieve the allegations levelled by her.
The bench of Justice Rajendra Prakash Soni thus refused anticipatory bail to a POCSO accused on the alleged ground of false implication. It said,
“On perusal of the record and upon consideration of the submissions, it would be clear that in the statement recorded under Section 164 of the Cr.P.C., victim has specifically alleged offence of rape against petitioner. In that view of the matter, if victim had refused to undergo medical examination, her above statement cannot be negated on this basis alone and it cannot be said that petitioner has been falsely implicated.”
Title: Shankar Lal v State of Rajasthan & Ors.
Citation: 2024 LiveLaw (Raj) 204
The Rajasthan High Court allowed a petition for 15 days of parole filed by a father convicted of raping his daughter. The convict had absconded during his first parole which was granted in 2018 and his father had denied giving any undertaking for his conduct during his application for second parole in 2022.
The division bench of Justice Pushpendra Singh Bhati and Justice Munnuri Laxman held that a balance needed to be achieved between the legislative intent of POCSO, that there should be minimal contact between the convict and the victim, and the statutory rights of the convict. Accordingly, it was directed that while being out on parole, the petitioner shall reside at a place that is away from the residence of the victim and shall not visit her.
Title: X v the State of Rajasthan & Ors.
Citation: 2024 LiveLaw (Raj) 238
In a case involving a minor victim of rape, a bench of Justice Dinesh Mehta at the Rajasthan High Court requested the advocate appearing for the pregnant minor to bear all expenses relating to her delivery while hearing a petition filed by the minor's father seeking a direction to the State to bear expenses upon their denial to do so.
The Court in turn requested Adv. Shreyansh Mardia to bear the delivery expenses of the minor, which was agreed to by the counsel.
Title: Laxman Charan v State of Rajasthan & Anr.
Citation: 2024 LiveLaw (Raj) 240
The bench of Justice Rajendra Prakash Soni at the Rajasthan High Court held that in a case of rape involving a minor girl, a compromise arrived at by the accused with the victim girl and her parents has no legal value and cannot be given effect since such compromises are often laced with coercion, undue influence or even financial incentives.
“Such compromises often reflect coercion or undue influence rather than a genuine settlement. Otherwise, why would guardians of a girl, who is a victim of such a heinous crime, agree to compromise with the accused.”
Title: RL v. State of Rajasthan
Citation: 2024 LiveLaw (Raj) 310
Rajasthan High Court ruled that certain contradictions in the statements of a minor victim, especially of sexual abuse, was likely due to traumatic nature of such incidents, and such minor inconsistencies in the victim's testimony were not sufficient to grant bail to the accused when the overall credibility of the allegations remained intact.
The bench of Justice Rajendra Prakash Soni also observed that the seriousness of sexual offences, particularly those involving familial relationship, makes the crime graver and warranted stricter consideration.
The Court also highlighted that under POCSO, a presumption of guilt was created once victim's testimony was found reliable after which the burden shifted to the accused to prove his innocence in which the petitioner had failed.
“Given the vulnerable state of the victim and the fact that instant child sexual abuse case, involves an individual who have access to minor victim within the family, I am of the considered opinion that the petitioner is not entitled to be released on bail.”
Citation: 2024 LiveLaw (Raj) 315
The Jaipur bench of the Rajasthan High Court upheld a 33-year-old trial court order convicting a man for attempting to rape a minor girl, while noting that the girl's version of the incident had not been "shaken" even though she was subjected to lengthy cross-examination by the defence.
After carefully examining the minor girl's statements, a single judge bench of Justice Anoop Kumar Dhand in its order however said, "This witness was cross examined by the appellant and slight improvement and contradictions were found, from her earlier statements which were recorded before the Police. Slight contradiction and improvements in her version were obvious because when the incident occurred on 07.02.1985 this child witness was of the age of 05 years and when her statements were recorded on 07.06.1990, her age was 11 years. Even though, the statements were recorded after 05 years and 04 months from the date of incident, the evidence of this witness has not shaken".
Title: Victim Minor through natural guardian v State of Rajasthan & Ors.
Citation: 2024 LiveLaw (Raj) 326
Rajasthan High Court rejected a petition by the father of a minor rape victim for termination of his daughter's 26-weeks pregnancy, since the same was medically opined as dangerous for both the girl as well as the foetus.
The bench of Justice Avneesh Jhingan ruled that the social, economic and psychological impacts were to be taken into consideration while taking the decision, however, the psychological aspect based on the societal pressure in itself was not enough to put two lives in danger.
Title: Victim v State of Rajasthan & Ors.
Citation: 2024 LiveLaw (Raj) 385
Upholding an order dismissing a father's plea seeking termination of his daughter's over 24-week pregnancy who was allegedly trafficked and raped, the Jaipur bench of the Rajasthan High Court took suo motu cognizance of the issue noting that there was no obligation in law on the State to apprise a sexual assault survivor of her right to termination.
In doing so the court observed that delay in taking steps resulted in various complications that compelled such women to continue with unwanted pregnancies.
A division bench of Chief Justice Manindra Mohan Shrivastava and Justice Uma Shankar Vyas observed that it had been noticed that numerous petitions were filed seeking Court's intervention for termination of pregnancy mainly because proper steps were not being taken by the victim within the stipulated time period under the Medical Termination of Pregnancy Act, 1971.
Title: Gangaram v State of Rajasthan & Ors. and other connected petitions
Citation: 2024 LiveLaw (Raj) 393
Taking note of the conflicting views, Rajasthan High Court has referred the issue of Whether a prisoner, convicted for the offence under Section 376 IPC/POCSO Act, undergoing the sentence of imprisonment in Jail, can be shifted to Open Air Camp, to a Larger bench.
“There is no exact decision on the legal issue involved in this petition, rather there are conflicting opinions and views of different Division Benches of this Court, but in the case of Asharam @ Ashu (supra), the question of law has been kept open by the Hon'ble Apex Court, hence, the same is required to be decided for all times to come, so that there should be uniformity in the orders on the legal issue involved in these petitions,” Justice Anoop Kumar Dhand noted while hearing a bunch of petitions filed by individuals seeking to be shifted from jail to open air camps.
Citation: 2024 LiveLaw (Raj) 398
The Rajasthan High Court on Tuesday allowed self-styled godman, Asaram Bapu, serving a life sentence for raping a minor girl, to get medical treatment at a Maharashtra-based Multidisciplinary Cardiac Care Hospital for 17 days in police custody.
“Concededly, the applicant is behind the bars for last 12 years and he is 88 years of age and suffering from multiple ailments including heart ailment. Hence, in order to ensure his right to get proper treatment, we are inclined to accept the application filed by the applicant for his treatment and send him to Madhavbaug Hospital in police custody,” a bench of Justice Dinesh Mehta and Justice Vinit Kumar Mathur observed in its order.
TELANGANA HIGH COURT
Kamsani Narasamma vs State of TS
Citation: 2024 LiveLaw (Tel) 03
The Telangana High Court has held that recovery of non-biological children from the custody of accused does not automatically mean that he is involved in kidnapping/ illegally trafficking minor girls into sex trade, particularly in absence of any material indicating the commission of any alleged offence.
While allowing a revision petition for discharge of the petitioner-accused, Justice N. Tukkaramji said,
"The claim of the prosecution is that as the DNA reports are indicating that the accused are not biologically related to the rescued girls, the accusation of trafficking can be inferred, is not found acceptable, for the reasons that merely as there is variance in the DNA finding, trafficking or commission of any sexual offence or the intention of the accused to commit the offence cannot be presumed unless there is prima facie material supporting the foundational facts."
UTTARAKHAND HIGH COURT
The Uttarakhand High Court asked the State Government to explore the possibility of counselling adolescent boys who date minor girls instead of arresting them under the Protection of Children from Sexual Offences (POCSO) Act.
A bench of Chief Justice Ritu Bahri and Justice Rakesh Thapliyal issued a notice to the Union of India and the State Government on a Public Interest Litigation (PIL) plea seeking directives to prevent the arrest of adolescent boys, under the POCSO Act, involved in consensual romantic relationships.
Case title - Dr. Kirti Bhushan Mishra vs. State of Uttarakhand and another
Case citation : 2024 LiveLaw (UTT) 19
The Uttarakhand High Court observed that the exhibition of private parts to a child, showing him dirty films, would prima facie amount to 'sexual harassment' of a child and make out an offence under Section 11 (Sexual Harassment) read with Section 12 (Punishment for sexual harassment) of the POCSO Act.
NORTH EAST HIGH COURTS
While upholding the conviction of a Man under Section 4 of the Protection of Children from Sexual Offences Act, 2012, the Meghalaya High Court recently observed that while at a young age, both (victim and accused) had lust and infatuation, only the accused was made a scapegoat.
Noting that "there is no provision under the POCSO Act to pardon a person who has committed the offence out of ignorance", a bench of Chief Justice S. Vaidyanathan and Justice W. Diengdoh observed that it was a case involving a love affair, and unfortunately, the accused had to undergo imprisonment for the mistakes committed by the two.
Case title: Shri. Thosterning Lyngdoh Nonglait vs. State of Meghalaya & Ors.
The Meghalaya High Court has observed that even with a delay of one year in commencing trial under the Protection of Children from Sexual Offences Act, 2012 (POCSO), while deciding on bail, the gravity of the offence needs to be taken into consideration
Case Title: Shri Andrew Rani Versus State of Meghalaya
Citation : 2024 LiveLaw (Megh) 18
Observing that the conviction of the accused can be based on the sole testimony of the prosecutrix if her testimony transpires the court's confidence, the Meghalaya High Court convicted the accused for committing the offence of rape on a minor victim even though the medical report didn't establish the guilt of the accused.
Case Details: Shri Thoura Damei versus State of Meghalaya through the Public Prosecutor
Citation: 2024 LiveLaw (Megh) 19
Recently, the Meghalaya High Court observed that touching the private parts of the victim with a penis would amount to committing an offence of aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act, 2012.
The Court said that the accused act of touching private parts of the victim with his penis without penetration into the vagina would not amount to committing a sexual assault (under Section 7 of POCSO) but aggravated penetrative sexual assault.
Case Details: Shri Treda Sungoh Versus State of Meghalaya
Citation: 2024 LiveLaw (Megh) 21
Based on the sole testimony of the victim, the Meghalaya High Court recently upheld the conviction of an accused for committing the offence of aggravated penetrative sexual assault under the POCSO Act.
The Court said that the accused can be convicted based on the sole testimony of the victim if the victim's testimony is found to be credit-worthy, unblemished, and inspires the confidence of the court.
Case Details: Shri Mihkahtngen Sarubai Versus State of Meghalaya & Anr.
Citation: 2024 LiveLaw (Megh) 22
Recently, the Meghalaya High Court affirmed the conviction of a boy who committed aggravated penetrative sexual assault on his girlfriend by way of intoxicating her temporarily to fulfil his sexual desire/lust.
After finding that the medical report duly corroborates the victim's testimony, the bench comprising Chief Justice S. Vaidyanathan and Justice W. Diengdoh refused to interfere with the punishment imposed on the accused.
Manipur High Court Deletes Earlier Direction To Consider Inclusion Of Meiteis In ST List
Case title: Mutum Churamani Meetei & Ors. vs. State of Manipur & ors.
Citation: 2024 LiveLaw (Man) 1
In a significant development, the Manipur High Court on Wednesday (February 21) modified its 2023 order in part, whereby a contentious direction was issued to the State government for considering the inclusion of Meiteis in the Scheduled Tribes (ST) list.
Case Details: Dr. Laishram Saratchandra Singh Versus The State of Manipur & Ors.
Citation: 2024 LiveLaw (Man) 7
Observing that providing different treatment to a similarly situated person goes against the spirit of the right to equality, the Manipur High Court struck down the State Government's notification which differentiates between the similarly situated Veterinary Officers in the State of Manipur for providing an age superannuation benefit from 60 to 62 years.
By placing reliance on the celebrated case of DS Nakara v. Union of India (1983), the Bench comprising Justice A. Guneshwar Sharma observed that the legislation/executive action can be struck down for violation of the principle of equality if the executive action doesn't satisfy the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved.
Case title: Tshering Thendup Bhutia vs. State of Sikkim
Citation: 2024 Live Law (Sik) 4
The Sikkim High Court has held that lack of injuries on a victim of rape would not disprove the prosecution's case if the victim's testimony is found to be credible and trustworthy.
The division bench of Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan observed that “mere lack of injuries on the victim's body who was examined after five days of the incident, would not be fatal to the prosecution case when the victim's testimony is found reliable.”
Case title: Lendup Lepcha vs. State of Sikkim
Citation: 2024 Live Law (Sik) 5
The Sikkim High Court has upheld a conviction under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) stating that the victim's deposition during the trial was truthful and consistent with her statement recorded by the Magistrate under Section 164 of the Code of Criminal Procedure, 1973 (CrPC).
Case title: Phurba Lepcha vs. State of Sikkim
Citation: 2024 Live Law (Sik) 6
The Sikkim High Court while deciding on a criminal appeal against the conviction of the appellant under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) observed that “…in our considered opinion, a child of three and half years would barely be able to understand the import of a person touching her private part, how she would be in a state of panic having comprehended that it was a sexual assault, is indeed astonishing and unbelievable.”
Case title: Ganesh Tamang vs. State of Sikkim
Citation: 2024 Live Law (Sik) 7
The Sikkim High Court concurred with the Trial Court's determination of a POCSO victim's age upon holding that the defence did not challenge the genuineness of the victim's birth certificate during cross-examination.
Justice Meenakshi Madan Rai was hearing an appeal against the conviction of the appellant by the Specia Trial Court under Section 7 of the POCSO Act for sexual assault on a seventeen-year-old girl.
Case Title: State of Sikkim v. Lall Bahadur Rai
The Sikkim High Court recently set aside the judgment of a Trial Court by which it acquitted a person charged with Sections 9(m) and 9(n) of POCSO Act and Section 354 of IPC on the ground that Trial Court was in error in acquitting the accused despite the unwavering evidence of the child victim on record and her evidence being wholly trustworthy.