Prominent Cases & Judgements Before POCSO
A listing of landmark cases and their judgements that laid the framework for Protection of Children From Sexual Offences Act 2012 and child and victim friendly judicial process.
Way back in 1956, the Orissa High Court, recognizing that the offence was committed by offence is committed by a person in a position of trust or authority for the child, enhanced the sentence of Ghanashyam Misra, a school teacher who raped a 10 year old girl in the school premises. The judgement reads – “The circumstances are all of an aggravating nature. The victim is a young girl of ten years, and the culprit an adult of 39 years… He took advantage of his position by inducing her to come inside the School room and committed such an atrocious act, the consequence of which might as well be the complete ruin of the future life of the girl.’ Not only did the court enhance the sentence to seven years but also ordered the accused to pay a compensation to the father and the child.
A girl under 16 years was ‘forcibly taken by the accused to his fields,outside the village where he committed rape on her. The court ruled that mere absence of marks of violence on the victim is immaterial because she was under 16 years of age. More importantly, it ruled that the victim cannot be considered as an accomplice to the act.
The Mathura rape case was an incident of custodial rape in India on 26 March 1972, wherein Mathura, a tribal girl who was a minor at the time, was allegedly raped by two policemen on the compound of Desai Ganj Police Station in Chandrapur district of Maharashtra. After the Supreme Court acquitted the accused, there was public outcry and protests, which eventually led to amendments in Indian rape law via The Criminal Law (Second Amendment) Act 1983 (No. 46)
In a case where the father was accused of raping his 13 year old daughter at home, the Bombay High Court maintained that seminal emission is not necessary to determine rape. It also prescribed stringent punishment because the victim was the daughter of the accused. The judgement reads: “Crimes in which women are victims need to be severely dealt with and in extreme cases such as this where the accused, who is the father of the victim girl has thought it fit to deflower his own daughter of tender years to gratify his lust, then only a deterrent sentence can meet the ends of justice.”
Harpal Singh & Anr. V/S State Of Himachal Pradesh on 14 November, 1980
The Supreme Court condoned the delay in filing the FIR in case of rape of a 16 year old girl. The court mentioned that it is common that since the honor of the family is involved, family members took some time to decide whether the matter needs to be taken to the court or not. The court also emphasized that since it was proved that the girl was below 16 years of age, her consent in sexual activity was irrelevant. The court also ruled that delay in reporting of the case will not affect the case if a reasonable explanation can be given.
The accused, a middle aged man had confined 2 friends of his daughter aged around 10 , who had come to his house to meet the daughter, and had raped them. The trial court convicted the accused for rape, violating modesty and wrongful confinement (UNDER SECTION ). The High Court upheld conviction while reducing the charge from rape to attempt to rape. The Supreme Court upheld the judgement of the trial court on the ground that minor discrepancies in the evidence were not relevant. The Court further remarked that corroboration for conviction in rape cases is not necessary. This judgement was relied on in later judgments to secure conviction when they were no other eye-witnesses to support evidence given by the victim.
Social worker Ms.Sheela Barse took up the case of children below age of 16 illegally detained in jails. As part of the ruling, the Court declared The right to speedy trial is a fundamental right implicit in Article 21 of the Constitution.
Imratlal v/s State Of Madhya Pradesh on 27 January, 1986
The Madhya Pradesh High Court stated in this case that the conviction of the accused can be solely based on the evidence of the victim, if her evidence is worthy of credence. The judgement also noted that for proving an offence of rape, it is not necessary that the accused, who commits rape, must discharge semen inside the vagina. The rule of corroboration is not the rule of law but rather a rule of prudence. The judgement goes on to state that when an offence of rape is proved on girls of tender age, the sentence of imprisonment should be severe.
In a case of rape, the court ruled that “the character or reputation of the victim has no bearing or relevance either in the matter of adjudging the guilt of the accused or imposing punishment.” It went on to characterize the ‘character’ of the victim as irrelevant as a mitigating or extenuating circumstance.
Six young domestic workers travelling on a train from Ranchi to Delhi were brutally harassed, assaulted and raped by army personnel. Acknowledging the hardships faced by the victims throughout the judicial process, this judgement delineated several guidelines to be followed when dealing with cases of sexual offences:-
- The complainants of sexual assault cases should be provided with adequate legal representation
- Legal assistance will have to be provided at the police station
- The police should be under a duty to inform the victim of her right to representation before any questions were asked of her.
- A list of advocates willing to act in these cases should be kept at the police station for victims.
- The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment.
- In all rape trials anonymity of the victim must be maintained, as far as necessary.
- Rape victims need to be given adequate and fair financial compensation.
- Compensation for victims shall be awarded by the court whether or not a conviction has taken place.
In this case, the Supreme Court was highly critical of the acquittal of persons accused of gang-raping a 16 year old girl. The trial court had referred to the young village girl as a person of loose character who had invented the story of rape to justify spending a night out of home. It had refused to rely on her statement. The Supreme Court observed that the appreciation of evidence by the trial court was “not only unreasonable but perverse”. It held that: “The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.”
State Of Andhra Pradesh vs Gangula Satya Murthy on 19 November, 1996
A girl of sixteen was raped and throttled to death. Sessions Court convicted the accused and sentenced him to imprisonment for life and rigorous imprisonment for 7 years. But on appeal, a Division Bench of the High Court of Andhra Pradesh acquitted him citing minor contradiction and discrepancies. This acquittal wads challenged by the State of Andhra Pradesh. This time, the court concluded that the acquittal was an error and displayed a lack of sensitivity. It categorically stated: “The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape.”
State Vs. Freddy Peats and Others
Freddy Peats ran an orphanage called ‘Gurukul Orphamily’ in Colva, Goa. Between 1980 and 1991, 27 shelter boys were subjected to various perverse sexual activities. Peats would not just abuse them himself but also send the boys along with other foreigners for sex. He would inject the testicles of the boys with steroids and photograph them in an obscene manner. Finally, the matter came to light in 1991. The trail was conducted in camera for the sake of victim boy’s anonymity and dignity. The prosecution proved that Peats had kept the boys in wrongful confinement and committed unnatural offences. It was also proved that he received money in lieu of allowing others to abuse the boys. The judgement was delivered by the additional sessions judge at Margoa in 1996 and the same was upheld by the Bombay Court, Goa Bench in 2000.
The judgement stated: “After having personally heard the victim boys in this court and accessed the merits backing the testimony which is overwhelming on record with absolute corroboration almost verbatim inter se and almost illustrated in each one of those photographs coupled with various admissions and the scheming silence of accused no.1, I am of the unshakable belief that accused no. 1 deserved no leniency at all of any nature whatsoever. Quantum of sentence shall definitely be proportionate to the gravity of the crime.” In 2005, at the age of 81, Freddy Peats passed away while still in custody.
Due to peculiar circumstances the muddemal of the case is being kept in a sealed condition with the Nazir of the court.
Sudesh Jhaku v/s K.C.J & Others, Delhi on 23 May, 1996
A sordid and shocking case of a father, a high ranking bureaucrat in the Ministry of Home Affairs, involving his six year old daughter in a series of sexualised games and orgies with himself and other adults forced the justice system into a series of deliberations on various aspects of sexual abuse and assault. There was a need to elaborate and expand on the meaning of the terms ‘rape’, ‘penetration’ and according a higher punishment to sexual offenders who hold a ‘position of trust and authority’. The court also deliberated on the precautions to be taken when child is called on depose in court. The order makes mention of several child friendly procedures like asking simple questions (avoiding double negatives) when questing the child and giving breaks to the child. It also highlights how the presence of a screen can not just retain anonymity of the child and also make her/him uncomfortable when deposing. It also speaks of the presence of ‘support persons’ or ‘neutral adults’ who can handhold and support the child during trial.
Hosadgura Hospital refused to medically examine a girl victim of 15 years of age as she had not been referred by the police. In the passing of the judgement, the Court put on record their disapproval of such conduct by Government Hospitals particularly in rural areas where hospital are few and far between citing the loss of evidence on account of the delay in conducting medical examination. The judgement also stated that age assessment of the victim, when in doubt, should be considered in favour of the victim.
The experiences faced by social workers while handling the Prem Sagar case resulted in a writ petition to ensure that institutions which house young children are not allowed to function without necessary Licenses. In the Prem Sagar case, Rev. Alfred who was the director of the ‘Prem Sagar’ institution had attempted to rape some children. Inspite of the FIR being lodged against Rev. Alfred, it was found that he continued to stay in the institution and abused the girls. The judgement reinforces some of the provisions of the Juvenile Justice Act that are essential to protect children who are housed in Institutions.
Sakshi Vs. Union of India on 26 May, 2004
The NGO Sakshi filed a writ petition in Public Interest to broaden the definition of rape in cases involving children where the child is abused by insertion of objects into the vagina or insertion of the male organ into body parts such as anus or mouth. The Supreme Court rejected the plea & dismissed the public interest litigation. But it issued valuable guidelines for trial of rape and sexual abuse which concern children. These are known as the Sakshi guidelines:
1. A screen or an arrangement where victim or witnesses do not see the body or face of the accused.
2. Questions put in cross examination on behalf of accused, if they relate directly to the incident, must be given in writing to the Presiding Officer of the court who may put them to the victim/witnessed in a language that is clear and not embarrassing.
3. Victims of child abuse or rape should be allowed sufficient breaks as and when required during the testimony.
In 2001, a case of institutional child sexual abuse was exposed in Colaba, Mumbai in which British nationals and former officers of the navy, Allan Waters and Duncan Grant had started an orphanage by the name of Anchorage Home which was center of sex tourism for many foreign nationals. In March 2006, a Mumbai sessions court sentenced Grant and Waters to six years in prison on the charge of sodomy and sexually abusing five minor boys. They challenged the conviction in the Bombay High Court, which acquitted them in 2008. However in 2011, Supreme Court restored the conviction and the sentence. Grant and Waters have since completed their sentence and returned to the UK where they have been put on the Sex Offenders Register.
Click to Read the 2008 judgement
Click to Read the 2011 judgement