BY- JAYA SINGH
The POCSO or Protection of Children from Sexual Offences Act, 2012 was enacted to Protect the Children from Offences of Sexual Assault, Sexual harassment and pornography with due regard for safeguarding the interest and well-being of children. The Act defines a child as any person below eighteen years of age and regards the best interests and welfare of the child as a matter of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child. The Act is gender-neutral. It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor. People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offense, with a maximum term of rigorous imprisonment for life, and fine.
CURRENT ISSUE –
Kerala has been experiencing massive profanation following Acquits of all four persons in the rape and death case of two minor girls, who were siblings, at Walayar in Palakkad district in Kerala whose Case is now being heard at POCSO Court. The two siblings were found hanging n their house at Attappallam on different days in 2017. When the 13-year-old girl was found dead on January 13, 2017, her nine-year-old sister was found hanging on March 4, 2017. The postmortem reports of the girls revealed that both were assaulted sexually and the autopsy reports of the younger one even pointed towards the probability of homicide hanging. However, the police in this Case did not explore the angle of murder and submitted the final report against the four Acquits with offenses of abetment of suicide rape and unnatural sex under the Indian Penal Code and penetrative sexual assault under the POCSO Court.
- On September 30, the special POCSO Court, Palakkad, Acquits one of the accused Pradeep Kumar. Others, V Madhu, M Madhu, and Shibhu, were also acquitted by the special court on October 25. A 17-year-old minor boy is the last accused in the Case. The juvenile court will hear his case on November 15.
- In between, the appointment of advocate N Rajesh, who appeared for the accused of a long time and relinquished later, as the chairman of the Child Welfare Committee during the pendency of the trial, triggered massive outrage. Following the protests, Rajesh was removed from CWC.
- Pradeep Kumar who used to give tuitions sexually abused the girl was sought to be proved through the dispositions of three young women who were examined as Prosecution Witnesses 9, 10 and 12. PW12 added that the girl told her that the accused had once locked her in a room and asked her to click his nude pictures from his mobile phone. The Court also noted that the statements made by PW12 regarding the accused giving the deceased a mobile phone to click his nudes photos were not found in her statements given to the police under Section 161CrPC. This omission was treated as a material contradiction by the court.
- No semen or spermatozoa could be collected either from the specimen collected from the deceased girl or from the dresses of the accused. There is an absolute absence of scientific evidence to connect the accused with the alleged offenses.
- PW11, the Assistant Surgeon of Forensic Department who conducted the post mortem examination through opined that the injuries noted in the anal penetration, she gave an alternative opinion also to be the effect that it could be the result of an infection in the region. The opinion was given by the doctor after the post mortem examination is not the conclusive proof to say that the girl was subjected to anal penetration. In this case, there is an absence of substantive evidence to be corroborated by the opinion evidence given by PW11. Moreover, her disposition itself shows that an alternative opinion of infection in the anal region of the girl was also given by this expert.
- The court also observed that there was substance in the argument of the defense that the statements of the witnesses were manipulated by the investigating officer after taking the accused in the custody.
- The court said that in order to accept the confessional statement under Section 27, the facts discovered should be within the exclusive knowledge of the accused. Here, the statements of PW9, 10 and 12 had mentioned the alleged place of the crime even before the confession of the accused. Also, there was no scientific or other evidence to show that the clothes claimed to have been discovered based on the confession of the accused were the ones that were worn by him at the time of the crime.
In the chain of possibilities and situations, only two are situations that are proved by the prosecutions. The first one is that the accused has been residing near to the house of the victim girl in a rented house and the second one is that the accused had an opportunity to commit an offense against the victim girl when she had visited his house either for playing or for obtaining tuition. But there is absence of any other situation to establish direct nexus with the commission of the offences.
The accused is entitled to be Acquitted of the offenses punishable under section 376(2), 377, 305 and 354 of IPC, Sec. 5(1) read with Sec.6 and Sec.7 read with Sec.8 of the Protection of Children from Sexual Offences Act and Sec. 3(1) (w) (i) and Sec. 3(2) (a) of the Scheduled Castes / Scheduled Tribes (Prevention of Atrocities) Act.