Case BriefsDistrict Court

Sessions Court, Borivali Division, Mumbai: In a case filed by a minor girl against the accused for offences under Sections 354, 354-D, 504 and 506 of Penal Code, 1860 (IPC) and under Section 12 of Protection of Children from Sexual Offences Act, 2012, (POCSO), S. J. Ansari, J., convicted the accused for the offences punishable under Section 354 of IPC and under Section 12 of POCSO vide Section 235(2) of Criminal Procedure Code (CrPC) and acquitted him of the offences punishable under Section 354-D, 504 and 506 Part-I of IPC vide Section 235(1) of CrPC.

The victim is a 16-year-old girl and the accused is a boy from the neighborhood who is alleged of passing comments upon the victim ‘X’ and said “kya item kidhar ja rahi ho?” while she was returning home from school.

The Court noted that in order to bring home the offence under Section 354 of IPC, the prosecution is required to prove the fact of the accused having either assaulted or used criminal force to a woman with the intention to outrage her modesty or with the knowledge that the said act would likely outrage the said victim’s modesty.

The Court further noted that there is nothing on the record to prove that any persons in the vicinity had witnessed the incident which had occurred between the the victim ‘X’ and the accused on the day and time in question. In such circumstances, there was no plausible reason to disbelieve the clear and cogent evidence of PW 1 the victim ‘X’ regarding the incident and the behavior of the accused, merely on account of the investigating officer not having recorded the statements of any other person.

Thus, the fact of the accused having intentionally touching the victim ‘X’s hair and pulling it, along with calling her an “item”, certainly proves the fact that he has outraged her modesty as “item” is a term used generally by boys to address girls in a derogatory fashion as it objectifies them in a sexual manner and the same clearly indicates his intention of outraging her modesty.

The Court also opined that in order to bring an offence within the provisions of POCSO Act, the prosecution is required to first prove the fact of the victim being a “child” within the meaning of the term as given to it under section 2(d) of the POCSO Act.

The Court perused the birth certificate of the minor victim issued by the Municipal Corporation of Greater Mumbai, which is a public document, and records PW 1 the victim ‘X’s date of birth being 24-12-1999 and was 15 and ½ years on the day of the incident. Therefore, she was a “child” within the meaning of the term as given to it u/s. 2(d) of the POCSO Act.

The Court observed that the prosecution has proved the fact that the accused with sexual intent, used to repeatedly or constantly follow the child and sexually harassing her. The other charges alleged stands not proved due to lack of cogent and reliable evidence.

Thus, the Court sentenced the accused to suffer simple imprisonment for one and half years and to pay a fine of Rs.500/- in default of which, he shall undergo further simple imprisonment for 3 months for the offence punishable under section 354 of IPC and to suffer simple imprisonment for a term of one year and six months and to pay a fine of Rs. 500/- in default of which, he shall suffer further simple imprisonment for 3 months for the offence punishable under section 12 of POCSO Act, 2012.

[State v. Abrar Noor Mohammad Khan, POCSO Special Case No. 106 of 2016, decided on 20-10-2022]


Arunima Bose, Editorial Assistant has put this report together


Advocates who appeared in this case :

Mrs. S. S. Mahatekar, Spl.A.P.P. for the State.

Advocate Ms. Salma Ansari for the Accused

Case BriefsDistrict Court

Court of Fast Track Special Judge (POCSO), Thiruvanathapuram: R. Jayakrishnan, Special Judge addressed a case wherein a minor boy aged 9 years old was subjected cruelly by a 53-year-old man who squeezed the boy’s private part causing him pain.

In the present case, a minor boy was sexually assaulted and attempted to commit carnal intercourse against nature by the accused.

Prosecutions’ Story

PW1 was the victim boy having aged 9 years and he was residing along with his family. The accused person was a servant of the owner of the house where PW1 and his family resided on rent.

While PW1 was in the veranda of the house the accused came and squeezed the penis of PW1. At that time the house owner came, and the accused released him. Immediately PW1 told the incident to his mother, but she did not take it as seriously, but she saw that the accused called PW1 to the backside of the kitchen, later P1 told his mother that the accused assaulted him and he showed her how the accused squeezed his penis.

The mother of PW1 asked him to tell the above-stated incident to his father, after which they went to the police station and registered a case.

Investigation

Investigation revealed that the accused with his sexual intent squeezed the penis of PW1 and caused pain to him and also called PW1 to the backside of the residence and thus committed the aforesaid offences.

After the investigation, chargesheet was filed against the accused before the Additional Sessions Court (POCSO). Therefore, the accused was in custody. Further, as per the order of the Sessions Judge, the case was transferred to this Court for trial and disposal.

Charge under Sections 511 and 377 of Penal Code, 1860 and Section 9(m) read with 10 of the Protection of Children from Sexual Offences Act was framed against the accused.

Points for determination:

  1. Whether the victim, in this case, was a minor?
  2. Whether the accused committed aggravated sexual assault on PW1?
  3. Whether the accused attempted to commit carnal intercourse against the nature of the order on PW1?
  4. What are the offence, if any, committed by the accused? 5. What is the sentence to be imposed?

Point 1: The mother of PW1 testified that the victim, PW1 is her son, and his date of birth is 07/12/2011. No serious dispute about the age of the victim was raised and it was found that at the time of the incident of the victim, PW1 was in this case a minor.

Points 2 and 3: In the present case, accused raised a number of suggestions at the time of examination of the witnesses, but no evidence was adduced to show that he had not committed any offence. As per the evidence it could be seen that the presence of the accused at the place of occurrence was proved. The only irresistible conclusion that the Court reaches at is that the accused was the perpetrator of the crime.

Bench found that there was no evidence to show that the accused had committed any attempt for carnal intercourse against the nature of the order on PW1 and considering the totality of the evidence and the circumstances, Court held that the accused committed aggravated sexual assault on PW1. Adding to this, the accused did not commit any offence of attempting to commit an unnatural offence of carnal intercourse against the victim.

Point 4: The accused was found not guilty of the offence under Sections 511 read with 377 of the Penal Code, 1860 and found guilty under Section 9(m) read with 10 of the POCSO Act.

Point 5: Bench expressed that,

The accused is a prudent man, well acquainted with the prose and cons of his misdeeds. His attitude shows his scant respect and honour for the legal system and morality. So he is not entitled to get the benevolent provisions of the Probation of Offenders Act, 1958.

Supreme Court’s decision in State of Punjab v. Bawa Singh, 2015 KHC 4036, it was held that,

“This Court reiterated the settled proposition of law that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which commensurate with gravity, nature of crime and the manner in which the offence is committed. One should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be lenient that it shocks the conscience of the society. It is, therefore solemn duty of the Court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers.”

Bench opined that the, accused who was aged 53 years subjected a 9-year-old boy to atrocities, hence he does not deserve any leniency for the sentence.

Therefore, the accused was sentenced to a rigorous imprisonment for 5 years and to a fine of Rs 25,000 with a default sentence for 6 months, RI under Section 9(m) read with 10 of the Protection of Children from Sexual Offences Act, 2012.

Lastly, the accused was not found guilty under Sections 511 read with 377 IPC.[Vijaykumar, In Re., Sessions Case No. 869 of 2021, decided on 17-1-2022]


Advocates before the Court:

Prosecution Conducted by: Special Public Prosecutor, Sri Vijay Mohan R.S.

Accused defended by: Shahul Hameed

Hot Off The PressNews

Misuse of social media for accessing pornographic content and child abuse

The Adhoc Committee of the Rajya Sabha instituted by Chairman Shri M. Venkaiah Naidu has made 40 far-reaching recommendations to prevent sexual abuse of children and to contain access to and transmission of child pornography content on the social media. The report of the Committee was today presented by the Chairman of the Committee Shri Jai Ram Ramesh to Shri Naidu.

Expressing concern over the seriousness of the prevalence of the horrific social evil of child pornography, the Committee has recommended important amendments to the Protection of Children From Sexual Offences Act, 2012 and the Information Technology Act, 2000 besides technological, institutional, social and educational measures and state-level initiatives to address the alarming issue of pornography on social media and its effects on children and the society as a whole.

The 40 recommendations made by the Adhoc Committee relate to adoption of a broader definition of child pornography, controlling access for children to such content, containing generation and dissemination of Child Sexual Abuse Material (CSAM), making accountable the Internet Service Providers and online platforms for denying access to children and removing such obscene content from online sites besides monitoring, detection and removal of content, preventing under-age use of such content, enabling parents for early detection of accessing such content by children, enabling effective action by the governments and authorized agencies to take necessary preventive and penal measures, etc.

Noting that the purveyors of child pornography seem always to be one step ahead of the regulators, the Committee stressed the need for implementation of its recommendations as an integrated package of measures and not piecemeal to have any value and impact. The Committee urged the Prime Minister to take up the subject of child pornography and the measures required to combat it in one of his forthcoming ‘Man Ki Baat’ broadcast besides taking the lead in building up a global political alliance to combat child pornography on social media like the International Solar Alliance initiative.

The Committee has broadly sought to address two main issues viz.,

  • access of children to pornographic material on social media and
  • the circulation of pornographic material on social media in which children are abused.

The major recommendations of the Committee are as under:

Legislative measures

  1. The Committee has recommended some important amendments to the POCSO Act, 2012 and the IT Act, 2000 with corresponding changes to be carried out in the Indian Penal Code;
  2. A clause to be inserted in the POCSO Act, 2012 under which advocating or counseling sexual activities with a person under the age of 18 years through any written material, visual representation or audio recording or any characterization is made an offence under the Act;
  3. Another clause to be inserted in the POCSO Act, 2012 prescribing a Code of Conduct for intermediaries (online platforms) for maintaining child safety online, ensuring age-appropriate content and curbing the use of children for pornographic purposes;
  4. Under the POCSO Act, 2012, school management should be responsible for the safety of children within schools, transportation services and any other programmes with which the school is associated;
  5. National Cyber Crime Reporting Portal shall be designated as the national portal under-reporting requirements in the POCSO Act in case of electronic material;
  6. A new section be included in the IT Act 2000, providing for punitive measures for those providing pornographic access to children and also those who access, produce or transmit Child Sexual Abuse Material(CSAM);
  7. Union Government shall be empowered through its designated authority to block and/or prohibit all websites/intermediaries that carry child sexual abuse material;
  8. IT Act to be modified making intermediaries responsible for all measures to proactively identify and remove CSAM as well as report it to Indian authorities as well besides the foreign authorities. Gateway Internet Service Providers (ISP’s) must bear a significant liability to detect and block CSAM websites. Intermediaries shall also be responsible to report to the designated authority, IP addresses/identities of all those searching/accessing child porn/CSAM keywords;

Technology measures

  1. Law enforcement agencies be permitted to brake end to end encryption to trace distributors of child pornography. Apps that help in monitoring children’s access to pornographic content shall be made mandatory on all devices sold in India. Such Apps or similar solutions to be developed and made freely available to ISP, companies, schools and parents;
  2. Ministry of Electronics and IT and Ministry of Home Affairs shall coordinate with Blockchain analysis companies to trace identities of users engaging in cryptocurrency transactions to purchase child pornography online. Online payment portals and credit cards be prohibited from processing payments for any pornographic website;
  3. ISPs shall be required to provide family-friendly filters to parents at the point of sign up to regulate children’s access to internet content;
  4. All social media platforms should be mandated with minimum essential technologies to detect Child Sexual Abuse Material besides regular reporting to law enforcement agencies in the country;
  5. On-streaming platforms like Netflix and social media platforms like Twitter, Facebook etc. should have a separate adult section where under-aged children could be disallowed;
  6. Social media shall have a mechanism for age verification and restricting access to objectionable/obscene material;

Institutional measures

  1. The Committee recommended an upgraded and technologically empowered National Commission for Protection of Child Rights(NCPCR) to be designated as the nodal agency to deal with the issue of child pornography. NCPCR should have necessary technological, cyber policing and prosecution capabilities;
  2. The National Crime Records Bureau (NCRB) shall mandatorily record and report annually cases of child pornography of all kinds. A national Tipline Number should be created where child sexual abuse, as well as the distribution of child pornographic material, can be reported by concerned citizens;

Social and Educational measures

  1. Ministries of Women and Child Development and Information and Broadcasting shall launch campaigns for greater awareness among parents to recognize early signs of child abuse, online risks and improving online safety for their child. Schools shall undertake training programmes for parents at least twice a year, making them aware of hazards for children of free access to smartphones, internet at an early age. Based on the experiences of other countries, a proper practicable policy for restricting use of smart phones by under aged kids needs to be considered;

State-level implementation

  1. The committee recommended that each State and Union Territory shall have empowered State Commission for the Protection for Child Rights mirroring capabilities and capacities of the NCPCR. E-safety Commissioners be appointed at state level to ensure implementation of social media and website guidelines relating to the removal of pornographic content, age verification, issuing warnings, etc.

The 14-member Committee including 7 women members of Rajya Sabha was set up by Shri Venkaiah Naidu on December 12 last year further to some members voicing concern over widespread misuse of social media for accessing pornographic content and child abuse.

The Committee heard the views of the Ministries of Women and Child Development, Electronics and IT and Home Affairs besides NCPCR and Telecom Regulatory Authority of India and other stakeholders like Google, Facebook, Whatsapp, Bytedance(TikTok), Twitter and Sharechat.

The Committee also received representations from 3 NGOs viz., HERD Educational & Medical Research Foundation, Nagpur, Centre for Child Rights, New Delhi and Internet Freedom Foundation, New Delhi.

Case BriefsHigh Courts

Delhi High Court: Observing that the trial court, in the present case, did not seem to be alive to realities, Sanjeev Sachdeva, J. quashed an order whereby the accused-respondent (father of the prosecutrix) was discharged of the offence punishable under Sections 354 (outraging modesty of a woman) and 376(2)(f) (punishment for rape committed by a relative, guardian, teacher or person in position of trust or authority of a woman) IPC.

The trial court discharged the accused as he was blind and the allegations made against him were not specific. Also, the prosecutrix did not raise alarm when she had opportunities and did not file any complaint all this while. It is pertinent to note that the parents of the prosecutrix were divorced and as per the prosecutrix, she did not even remember as to when sexual assaults started to be committed upon her by her father. In the present complaint, she mentioned about incidents which happened when she was the age of 6 years old upto the age of 13-14 years old. She was 18 years old at the time of filing of the complaint. She mentioned that it was only when she was taught sex-education in her hostel, that she came to realise that she was being sexually assaulted. She then talked about it to her friend, who advised her about her options and thereafter they got in touch with an NGO.

The High Court noted that the prosecutrix had given a detailed description of the manner in which she was assaulted by the accused. It was observed: “A child who is subjected to sexual abuse and assault from a tender age of 6 and which assault continues till she is 14 years of age, would not even be aware that she is being abused or any offence is happening. The prosecutrix in her statement has stated that she was not aware of the abuse and became aware only when she grew up.”

Commenting on the flawed approach of the trial court, it was stated: “Trial court has erred in not appreciating that the accused is the father of the prosecutrix and was in a dominating position and keeping in the view the relationship, it would not be abnormal for the prosecutrix not to make a complaint against her own father. The reasoning given by the Trial Court is completely perverse and contrary to record.”

Satisfied that the allegations raised gave suspicion against the accused of having committed the alleged offence, the High Court allowed the present petition of the State which was filed after elucidating opinions from the Additional Public Prosecutor, the Chief Prosecutor, the Director of Prosecution, the Principal Secretary (Law and Justice) and also the Law Minister. The matter was remitted to the trial court for framing of appropriate charges against the appellant. [State (NCT of Delhi) v. X, 2019 SCC OnLine Del 7913, decided on 02-04-2019]