JAI NARAIN VYAS UNIVERSITY

FACULTY OF LAW
JODHPUR

SESSION – 2023-24

SUBJECT – LAW AND SOCIAL TRANFORMATION I

INDIA

TOPIC – POCSO ACT, 2012

SEMESTER – LL.M 1ST SEMESTER

SUBMITTED BY – SUBMITTED TO –

DILIP KUMAR JANI

 ACKNOWLEDGMENT
I have taken lots of efforts in this assignment. However it
would not have been possible without the kind support of
………………………………... I would like to express my
sincere thanks to him.

I m highly indebted to jai Narayan vyas university for this

guidance and constant supervision as well as for providing
necessary information regarding this assignment.

I would like to express my gratitude towards my family and

friends for their kind cooperation and encouragement which
helped me in completing my assingnment.

My thanks also goes to those people who directly or indirectly

helped me in completing my project report.

DILIP KUMAR JANI

 TABLE OF CONTENT
SR. NO CONTENT
1 INTRODUCTION
2 POCSO ACT 2012 :
2.1 NEED OF POCSO ACT, 2012
2.2 SCOPE OF POCSO ACT, 2012
2.3 APPLICANILITY OF POCSO, 2012
3 IMPORTANCE OF POCSO ACT, 2012
4 FEATURES OF POCSO ACT, 2012
5 OVERVIEW OF POCSO ACT, 2012
5.1 CHILD SEXUAL OFFENCE
6 PUNISHMENT FOR OFFENCE COVERED UNDER POCSO ACT
7 GENERAL PRINCIPLES OF POCSO ACT, 2012
8 ABETMENT AND ATTEMPT TO CHILD SEXUAL ABUSE
8.1 ABETMENT OF SEXUAL ABUSE
8.2 ATTEMPT OF SEXUA ABUSE
9 TRIAL OF OFFENCE UNDER POCSO ACT, 2012
9.1 DESPOSITION OF THE VICTIM
92 THE TIME LIMIT FOR DISPOSAL OF CASES
9.3 MEDICAL AND FORENSIC
9.4 ADMISSIBILITY OF THE MEDICAL HISTORY OF THE
VICTIM
9.5 DUTIES OF MEDICAL EXAMINER
9.6 JURISIDCTION OF POCSO ACT, 2012
9.7 THE BURDEN OF PROOF UNDER THE POCSO ACT, 2012
10 SIGNIFICANT JUDDICIAL PRONOUNCEMENT
11 SHORTCOMINGS OF THE POCSO ACT, 2012
12 CONCLUSION
13 REFFERENCE
Introduction
The Protection of Children from Sexual Offences Act, 2012 [“POCSO Act,
2012”] is legislation which aims at protecting children from all types of sexual
abuse. Although the Convention on the Rights of the Child was adopted by the
United Nations in 1989, the offences against children were not redressed by
way of any legislation in India till the year 2012.  It provides stringent
deterrents for the commission of offences against children ranging from a
minimum of 20 years of imprisonment to the death penalty in case of
aggravated penetrative sexual assault. 

POCSO Act, 2012

Need of the POCSO Act, 2012
Before the introduction of the POCSO Act, 2012, the sole legislation in India
that aimed at protecting the rights of a child was the Goa’s Children’s Act, 2003
and Rules, 2004.  Under the Indian Penal Code, 1860, child sexual abuse
accounted for an offence under Sections 375, 354 and 377. These provisions
neither protect male children from sexual abuse nor protect their modesty. Also,
definitions of the terms like ‘modesty’ and ‘unnatural offence’ are not provided
in the Code. 

Owing to the lack of any specific legislation, it was pivotal to establish a statute
that pointedly tackles the issue of growing child sexual abuse cases in the
country. With the efforts of multifarious NGOs, activists and the Ministry of
Women and Child Development, POCSO Act, 2012 was enforced on 14th
November 2012. 

Scope of the POCSO Act, 2012

In India, POCSO Act, 2012 is not the only legislation which deals with child
sexual abuse cases. The POCSO Act cannot be called a complete code in itself
and provisions of the Code of Criminal Procedure, 1973, Indian Penal Code,
1860, Juvenile Justice Act, and Information Technology Act, 2000 overlap and
encapsulate the procedure and specify the offences. 
Applicability of the POCSO Act, 2012
POCSO Act, 2012 is divided into 46 sections. It was published in the official
gazette on 20th June 2012 but came into force on 14th November 2012 which
raises the question of its applicability to the cases prior to its enforcement date. 

In the case of M. Loganathan v. State (2016), the offence of rape was

committed on 28.09.2012 i.e., before the Act was enforced, but the trial court
convicted the accused under Section 4 of the POCSO Act. Consequently, the
High Court of Madras declared that conviction being violative of Article
20(1) of the Constitution of India, 1950 was unconstitutional and it was
modified to punishment under Section 376(1) of the Indian Penal Code, 1860. 

In another case of Kanha v. State of Maharashtra (2017), the accused was

convicted under Section 376 of the Indian Penal Code and Section 6 of the
POCSO Act for having committed aggravated penetrative sexual assault upon
the victim which resulted in her pregnancy. The accused contended that unless
there is proof of age of foetus, the date of the commission of offence was not in
proximity with 14.11.2012 and thus, he cannot be prosecuted under Section 6 of
the POCSO Act. The High Court of Bombay accepted the argument and
acquitted the accused of all the charges. Therefore, it is apparent that when the
applicability of the POCSO Act is questioned, the courts either alter the
conviction of the accused or acquit them. 

The Act enunciates the punishment where the offences have been committed
against a child. Section 2(1)(d) of the POCSO Act contains the definition of
child. It states that, “ a child means any person below the age of eighteen year”.
This implies that offences perpetrated against anyone of the age less than
eighteen years are punishable under the POCSO Act. 

Importance of the POCSO Act, 2012

1. POCSO Act, 2012 was enacted when the cases of sexual abuse against
children were rising. It contains provisions regarding the protection of
children from sexual assault and pornography and lays down the
procedure for the implementation of these laws. 

2. Incidents of sexual abuse against children occur at schools, religious

places, parks, hostels, etc and the security of children is not guaranteed
anywhere. With such emerging dangers, it was significant to introduce
 separate legislation which could provide a reliable system for mitigating
the number of such offences and punishing the perpetrators. 

3. The Act has been instrumental in providing a robust justice mechanism

for the victims of sexual abuse and has highlighted the significance of
child rights and safety. The reporting of cases of child sexual abuse has
also surged as a consequence of awareness. The Act covers punishment
for both non-penetrative sexual assault and aggravated penetrative sexual
assault.

Features of the POCSO Act, 2012

Some of the salient features of the POCSO Act are discussed as follows:

 Confidentiality of the victim’s identity: Section 23 of the POCSO Act

provides for the procedure of media and imposes the duty to maintain the
child victim’s identity unless the Special Court has allowed the
disclosure. Section 23(2) states, “no reports in any media shall disclose
the identity of a child including his name, address, photograph, family
details, school, neighbourhood and any other particulars which may lead
to the disclosure of the identity of the child”. In the landmark case
of Bijoy @ Guddu Das v. The State of West Bengal (2017), the Calcutta
High Court reiterated the law made under Section 23 and declared that
any person including a police officer shall be prosecuted if he/ she
commits such a breach. 

 Gender-neutral provisions: Another glaring feature of the POCSO Act

is that it does not create any distinction between the victim or the
perpetrators on the basis of their gender. This overcomes one of the
biggest shortcomings of the Indian Penal Code’s provisions. The
definition of child includes anyone below 18 years of age and in several
cases, the courts have even convicted women for engaging in child sexual
abuse incidents. 

 Mandatory reporting of child abuse cases: Sexual abuse cases happen

behind closed doors and the elders attempt to hide these incidents due to
the stigma that is attached to these crimes. Consequently, for the proper
implementation of the POCSO Act, reporting of these incidents by the
third parties who have the knowledge or apprehension of such offences,
has been made mandatory under Sections 19 to 22 of the POCSO Act.
 These laws have been made on the basis of assumptions that children are
vulnerable and helpless and society has the duty to protect the interests of
the children. 

In the case of State of Gujarat v. Anirudhsing and Another (1997), the Supreme

Court had observed that it is the duty of every citizen to aid and cooperate with
the investigative agencies and give information regarding the commission of
cognizable offences. In various instances, schools and teachers help the child
victims by reporting the sexual abuse cases to the authorities. For example, in
the case of Nar Bahadur v. State of Sikkim (2016), teachers received
information that her student is pregnant due to repeated sexual assualts on her
by an elderly accused. The teachers informed the panchayat who lodged an FIR
in the police station. 

Shankar Kisanrao Khade v. State of Maharashtra (2013) is an important case

where the Supreme Court laid down guidelines regarding reporting the offence.
In this case, rape was committed on an 11-year-old child with moderate
intellectual disability but it was neither reported to the police nor to the juvenile
justice board. The Court observed that children with intellectual disabilities are
more vulnerable and therefore, the institutions which house them have the
responsibility to report sexual abuse incidents against them. Furthermore, it was
laid down that non-reporting of crime in accordance with the provisions of the
POCSO Act is a serious offence.

 The last seen theory: The theory of last seen is applied in the child
sexual abuse trials. According to this theory, the person who is last seen
with the victim is assumed to be the perpetrator of the offence when the
time gap between the point when they were last seen alive is so minute
that it is not possible that any other person could have committed the
crime. In the case of Shyamal Ghosh v. State of West Bengal (2012), it
was observed that when the time gap is large then it is not reasonable for
the Courts to apply the last seen theory. 

 Child-friendly investigation and trial: Sections 24, 26 and 33 of the

POCSO Act lay down the procedure of investigation and trial which has
been formulated keeping in mind the needs of a child. The following
points are taken into consideration while investigating any crime under
POCSO Act:
i. The statement of the child is to be recorded at his/ her place of residence and
generally by a woman police officer.

ii. The officer who is to record the statement of the child should not be wearing
a uniform.

iii. The officer should ensure that the child does not come in contact with the
accused during the examination.

iv. A child is not to be detained in the police station at night.

v. The officer should ensure that the identity of the child is not revealed.

vi. The statement of the child is to be recorded in the presence of a person in

whom the child has trust, for example, their parents.

vii. The statement of the child is to be recorded via audio-video electronic

means.

viii. The assistance of the translators or interpreters should be taken wherever

necessary.

ix. Frequent breaks are to be allowed during the trial.

x. The special court has to ensure that the child is not called to repeatedly testify
in the trial court.

xi. Aggressive questioning of the child is not permitted during the trial.

Overview of the POCSO Act, 2012

The POCSO Act, 2012 is comprehensive legislation containing 9 chapters
dealing with the offences, punishment and procedure. 

Child sexual abuses

 Penetrative sexual assault: Section 3 of the POCSO Act defines

penetrative sexual assault and Section 4 lays down the punishment which
was made more stringent by the 2019 amendment. In the case of Bandu v.
The State of Maharashtra (2017), a person was committed under Sections
4 and 6 of the POCSO Act along with some provisions under the Indian
Penal Code, 1860 for having committed penetrative sexual assault on a
physically and mentally challenged 10-year-old girl. In Pranil Gupta v.
State of Sikkim (2015), the victim aged 15 years stayed with the accused
 and injuries were found in her genital area. The High Court relied on the
statement of the accused that the accused opened her clothes and raped
her 5 times in one night. The contention of the accused that he was not
aware of the victim being a minor was not accepted and the accused was
prosecuted under Section 3 of the POCSO Act. 

 Aggravated penetrative sexual assault: Section 5 of the POCSO Act

lays down the cases in which penetrative sexual assault amounts to
aggravated penetrative sexual assault. For example, penetrative sexual
assaults on a child by a police officer within the vicinity of a police
station, by armed forces within the limits of their area, by a public
servant, by the staff of jails, hospitals or educational institutions are
considered aggravated penetrative sexual assault and are punishable
under Section 6 of the POCSO Act.

 Sexual assault: Section 7 of the POCSO Act defines sexual assault

as, “Whoever, with sexual intent, touches the vagina, penis, anus or
breast of the child or makes the child touch the vagina, penis, anus or
breast of such person or any other person, or does any other act with
sexual intent which involves physical contact without penetration is said
to commit sexual assault”. In Subhankar Sarkar v. State of West
Bengal (2015), on medical examination of the victim, it was found that
there was no evidence of penetrative sexual assault but scratch marks on
the body of the victim were found which proved the use of force and thus,
the accused was convicted under Section 8 and 12 of the POCSO Act. 

 Aggravated sexual assault: Section 9 and 10 of the POCSO Act contain

provisions regarding aggravated sexual assault on a child. In the case
of Sofyan v. State (2017), the accused who was a plant operator in the
swimming pool area was convicted by the Trial Court under Section 10 of
the POCSO and Section 354 of the Indian Penal Code, 1860 for having
sexually assaulted a girl of 8 years old. The facts of the case are that when
the victim was wearing her swimming costume in the changing room
area, the accused approached her and inserted his hand in her swimming
costume and touched her with sexual intent. The Delhi High Court
rejected the argument of the accused that he was implicated falsely and
the conviction was upheld. 
 Sexual harassment: Section 11 of the POCSO Act defines sexual
harassment. It includes six cases which constitute sexual harassment of a
child. 

1. First, if anyone utters any word or makes any sound or exhibits any object
with sexual intent to a child. 

2. Second, if anyone makes a child exhibits his body so that it is seen by the
offender or any other person. 

3. Third, if any person shows any child any form or media for pornographic
purposes. 

4. Fourth, if anyone constantly watches or stalks a child directly or online. 

5. Fifth, if anyone threatens to use a real or fabricated depiction of any part

of the body of the child or the involvement of the child in a sexual act
through electronic, film or digital. 

6. Sixth, if anyone entices a child for pornographic purposes. 

 Pornography: Section 13 of the POCSO Act states that anyone who uses
a child for pornographic purposes by either representing the sexual organs
of the child or using a child in real or simulated sexual acts or
representing a child indecently or obscenely in programmes or
advertisements on television or on internet, commits the offence under
this section and is liable in accordance with Sections 14 and 15 of the
POCSO Act. In the case of Fatima A.S. v. State of Kerala  (2020), in a
video on social media, a mother was seen being painted her naked body
above the navel by her two minor children and she alleged that the motive
of the video was to teach sex education to them. The Supreme Court of
India observed in this case that, “in the initial years, what the child learns
from their mother will always have a lasting impression on their mind. It
is usually said that the mother will be the window of the child’s to the
world”. Hence the same was covered under Section 13. 
Punishment for offences covered in the POCSO Act, 2012
Punishment for the above offences is specified in the table:

Relevant
Name of the offence provision of the Punishment
POCSO Act

Penetrative sexual assault on Minimum imprisonment of 10 years

a child of 16 to 18 years of Section 4 which may extend to imprisonment for
age life plus fine

Minimum imprisonment of 20 years

Penetrative sexual assault on
Section 4 which may extend to imprisonment for
a child below 16 years of age
the remainder of natural life plus fine

Minimum rigorous imprisonment of 20

Aggravated penetrative years which may extend to
Section 6
sexual assault imprisonment for the remainder of
natural life plus fine or death

Sexual assault Section 8 Imprisonment of 3 to 5 years plus fine

Aggravated sexual assault Section 10 Imprisonment of 5 to 7 years plus fine

Imprisonment which can extend upto 3

Sexual harassment Section 12
years plus a fine.

First conviction- imprisonment

Use of a child for extending up to 5 years second or
Section 14(1)
pornography further convictions- imprisonment
extending up to 7 years plus fine

Use of a child for

Minimum imprisonment of 10 years
pornography while
Section 14(2) extending up to imprisonment for life
committing an offence under
plus fine
Section 3

Use of a child for Section 14(3) Rigorous imprisonment for life plus
pornography while fine
committing an offence under
Section 5

Use of a child for

pornographic purposes while
Section 14(4) Imprisonment of 6 to 8 years plus fine
committing an offence under
Section 7

Use of a child for

pornographic purposes while
Section 14(5) Imprisonment of 8 to 10  years plus fine
committing an offence under
Section 9.

Offence of storing
pornographic material Imprisonment extending upto 3 years or
Section 15
involving a child for fine or both
commercial purposes

General principles of the POCSO Act, 2012

There are a few principles which are to be followed while the conduct of the
trial under the POCSO Act. These are as follows:

 Right to be treated with dignity- Various provisions under the POCSO

Act reflect that it is very crucial to treat a child with dignity and utmost
compassion 

 Right to life and survival- Right to life is a fundamental right provided

by Article 21 of the Indian Constitution. It is essential that a child should
be protected from the evils of society and could be brought up in a secure
environment.

 Right against discrimination- This is also a crucial fundamental right

and an additional duty under the Indian Constitution. A child should not
be discriminated against on the basis of sex, religion, culture, etc and the
investigative and court procedures should be just and fair. 

 Right to preventive measures- Children being immature in their

growing stages, should be well trained so that they become capable of
 preventing abuses against them thereby differentiating between what is
right and what is wrong.

 Right to be informed- A child should be informed of the legal

procedures that are being carried out for the conviction of the accused.

 Right to privacy- The main objective behind provisions like Section 23

is to protect the right to privacy of a child against whom any offence
under the POCSO Act has been committed so as to maintain the
confidentiality of the proceedings for the best interests of the child
victim. 

Abetment and attempt to child sexual abuse

Abetment of child sexual abuse

Section 16 of the POCSO Act defines the abetment of the offence. The
following acts constitute abetment of offence under the POCSO Act:

 Instigating any person to commit that offence;

 Engaging in any conspiracy with one or more persons to commit any

offence when any illegal act or omission takes place in consequence of
that conspiracy;

 Aiding to commit that offence intentionally.

The punishment for the abetment of offence is specified under Section 17 of the
POCSO Act, 2012 according to which a person who abets the commission of an
offence and the offence is executed is to be punished with the punishment that
has been provided for that offence under the POCSO Act. 

Attempt to child sexual abuse

Section 18 enunciates that attempt to commit any offence under the POCSO
Act, 2012 is also an offence inviting either of the two following punishments:

 Imprisonment provided for that offence for a term extending upto one-
half of the imprisonment for life, with or without fine;

 Imprisonment provided for that offence for a term extending upto one-
half of the longest term of imprisonment with or without fine. 

Trial of offences under the POCSO Act, 2012

The POCSO Act specifies the provisions regarding the trial of a reported
offence under Sections 33 to 38. Following are some glaring features provided
under the POCSO Act regarding the conduct of trial:

Deposition of the victim

Section 33 specifies that the Special Court can take cognizance of the offence
without the accused being committed to the trial. Section 36 mentions that the
child should not be exposed to the accused at the time of giving evidence but
this provision was not followed in the case of Vasudev v. The State of
Karnataka (2018). The deposition sheet reflected that the victim was
aggressively questioned and only when she had got emotional while narrating
the incident, the accused was sent out. The Karnataka High Court dismissed the
appeal of the accused who was convicted under Section 4 of the POCSO Act. 

Furthermore, in the case of Nar Bahadur Subba v. State of Sikkim (2017), in the

appeal before the Sikkim High Court, the Court observed that in the trial court
deposition, the teachers of the victim have stated, ‘It is true that I am not well
acquainted with the character of the victim’. To this, the Court noted that
gauging the character of an 11-year-old girl is of no question and the cross-
examination has violated provisions of Section 33 of the POCSO Act. 

The time limit for disposal of cases

Section 35 of the POCSO Act stipulates the following timelines:

 For recording the evidence of the child: 30 days from the date of taking
cognizance of the offence,

 For completing the trial: 1 year from the date of taking cognizance of
the offence. 

In the case of Shubham Vilas Tayade v. The State of Maharashtra (2018), the

Special Court allowed the prosecution for recording evidence after 30 days of
taking cognizance. This order was challenged by the accused, being violative of
Section 35 of the POCSO Act. However, the high court agreed with the
counterargument of the APP that as the accused did not challenge the
application of the prosecution so he cannot challenge the order. Furthermore, it
was observed that even otherwise, the Special Court can record evidence after
30 days and the only rider provided by Section 35 is that the reasons for the
delay have to be recorded.
Medical and forensic evidence
Child sexual abuse is rarely diagnosed merely on the basis of physical
examination. In many instances, the scars or bruises on the body of the victim
are not found either because the cases are not immediately reported or the
sexual abuse does not result in such injuries. 

In the case of Pintu v. State of U.P. (2020), the conviction of the accused

under Section 377 of the Indian Penal Code, 1860 and Section 6 of the POCSO
Act were set aside and one of the reasons was that there was no mark of external
injury around the anus of the victim and the Allahabad High Court opined that
in case of a sexual assault on a boy of 7 years old by a person aged 23 years,
there should have been some kind of external injury. 

In the case of State (NCT of Delhi) v. Anil (2016), the Trial Court and the Delhi
High Court acquitted the accused from the charges under POCSO Act due to the
following points:

 The victim refused her internal medical examination when she was
brought to the hospital.

 The medical reports reflected that her menstrual cycle was regular and
hence, her claim that she had gotten pregnant due to a physical
relationship with the accused had failed. Moreover, no proof of
hospitalization was provided to her.

 There were no injuries on her body.

Admissibility of the medical history of the victim

The medical history of the victim is not given much importance by the Indian
judiciary. In the case of Gangadhar Sethy v. State of Orissa (2015), the doctor
did not find any injury marks on the body of the victim but stated that based on
her medical history, here is the possibility of an attempt to sexual assault cannot
be ruled out. On the other hand, the Orissa High Court paid no emphasis on the
medical history and held that one cannot interpret what the victim meant by the
term ‘assault’. It cannot be extended to imply that she was talking about
penetrative sexual assault. Moreover, the medical or other evidence did not
justify such a conclusion. 
Duties of a medical examiner
It is essential that the medical examination of a child is conducted with utmost
care and precaution. Rule 5(3) of the POCSO Rules, 2012 makes the provision
that no medical facility or practitioner who renders emergency medical care to a
child should ask for any kind of legal or other documentation before providing
such care. Apart from this, Section 27 of the POCSO Act lays down certain
laws regarding the conduct of medical examinations. These are as follows:

 The medical examination has to be conducted in accordance with Section

164A of the Criminal Procedure Code, 1973.

 A medical examination of a girl is to be conducted by a woman

practitioner.

 It should be conducted in the presence of a person in whom the child has

trust, for example, his/ her parents, otherwise in the presence of a woman
nominated by the head of the medical institution. 

Jurisdiction of the POCSO Act, 2012

Section 28 of the POCSO Act lays down the provision regarding the designation
of special courts. It says that the special courts also have the jurisdiction to try
offences under Section 67B of the Information Technology Act, 2000. Section
33 gives the power of a Court of Session to the special courts.
Furthermore, Section 42A specifies that in case of any inconsistency, the
provisions of the POCSO Act would override the provisions of any other law. 

In the case of M. Kanna v. State (2018), there were discrepancies in the

professional duty of the defence counsel who violated the right to a fair trial of
the accused. The Madras High Court after making note of this fact remanded the
case back to the trial court to provide the opportunity to the accused to cross-
examine the witness. Also, the case was transferred from the trial court in which
it was pending as it was presided over by the same judge. 
The burden of proof under the POCSO Act, 2012
The objective behind the legislation is to ensure that the actual offenders are
behind the bars. One approach that has been inoculated in the POCSO Act is to
reduce the burden on the prosecution to prove certain things by introducing
presumptions. Section 29 and 30 of the POCSO Act lay down the provision
with respect to the burden of proof. 

According to Section 29, the person who is prosecuted for the commission of
the child sexual abuse offences is presumed to have committed or abetted or
attempted to commit such offence. The main issue that arises while
implementing this provision is that the nature of presumption that has to be
applied is at the whim and fancy of the courts. Also, this provision has been
challenged to be unconstitutional in a number of cases as it intervenes with the
right to be presumed innocent, right against self-incrimination and the right to
remain silent. 

In Imran Shamim Khan v. State of Maharashtra (2019), a child told her

grandmother that she was sexually abused and her medical examination
confirmed this. However, her mother told her to ignore it. The statements of the
child victim and her grandmother were recorded before the magistrate. The
Bombay High Court made an important observation in this case by stating
that, “even if a minor in a sexual assault case turns hostile under the POCSO
Act, the onus is on the accused to establish the innocence. It is easy to say that
the prosecution failed to prove the guilt of the accused. But in a case like this,
the judicial approach has to see justice is imparted to the victim too”.

Further Section 30 provides the opportunity to the accused to prove his/ her
innocence thereby making the presumption under Section 29 rebuttable. In the
case of S. Suresh v. State of Tamil Nadu (2017), the accused was convicted
under Section 6 of the POCSO Act and he had not rebutted the presumption of
Section 29. Therefore, the Court observed that the rebuttable presumption also
proves the guilt of the accused. 
Significant judicial pronouncements
Bijoy v. The State of West Bengal (2017)

In this case, the accused was convicted of committing sexual assault and the
Calcutta High Court laid down some directives which are to be followed by the
investigating agencies to protect the dignity of the child victim. Following are
some of the important directions:

 The police officer has to register the FIR as per Section 19 of the POCSO
Act. Also, they have to inform the victim and their parents about their
right to legal aid and representation.

 After the registration of the FIR, the child should be immediately sent for
medical examination under Section 27 of the POCSO Act. In case the
child falls within the definition of ‘child in need of care and protection; as
defined under Section 2(d) of the Juvenile Justice (Care and Protection of
Children) Act, 2000, the child is to be forwarded to jurisdictional CWC.

 The identity of the victim is not to be disclosed in any media.

Further, the Court issued some guidelines regarding the compensation to the
victims. Some important points are as follows:

 Compensation under Section 33(8) of the POCSO Act can be awarded by

the Special Court at the interim stage.

 The compensation at the interim stage is independent of compensation to

be paid by the convict upon conviction.

 The objective behind providing compensation is the relief and

rehabilitation of the child victim and the reparation to the victim when the
State has failed to protect the individual from crimes.

Vishnu Kumar v. State of Chhattisgarh (2017)

The Chhattisgarh High Court observed that Section 36 of the POCSO Act was
not complied with in its letter and spirit while deciding the appeal of the
accused. Therefore, some guidelines were issued by the Court to all the judicial
officers of the state:

 The Presiding Officer must make the child witness as comfortable as

possible. Along with the in-camera proceedings, the Presiding Officer
 should come down from the dais and engage in conversation with the
child. He/ she can also offer toys and sweets to the child witness as the
child must not feel that he/ she is in a majestic place.

 The strict rules of evidence can be ignored in order to search for the truth
as justice should prevail.

 The Court should ensure the child’s safety and the statement of the child
can be recorded after 3-4 hours or the next day if necessary as the prime
motive should be to make the child comfortable and record the statements
free of any influence. 

 A child normally tells the truth but as they are dependent beings so their
statements might get influenced by other people so it is the rule of
prudence and caution that the statements of a child are to be scrutinized
carefully.

Dinesh Kumar Maurya v. State of U.P. (2016)

This case throws light upon the intricacies of the medical evidence of the
victim. The Allahabad High Court in this case set aside the conviction of the
accused under Sections 3 and 4 of the POCSO Act as there were no marks of
injury on the body of the victim who was 14 years of old but the victim had
stated that there was forcible sexual intercourse. The Court made the following
observations in this case:

 The injuries on the body are not always sine qua non for proving the
offence of sexual assault but if the victim states that she has been
helplessly raped then the marks of injury on the thighs, breasts, face,
wrists or any other part of the body can immensely support her
statements.

 The Courts should always take into consideration the fact that false
charges of rape or sexual assault are common and the parents in order to
take revenge convince their minor daughters to tell lies and concoct
stories.
Sunderlal v. The State of M.P. and Ors. (2017)

This is an important judicial pronouncement where the father of the minor rape

victim filed a petition under Article 226 of the Constitution of India, 1950 to get
permission to terminate her pregnancy. The  Madhya Pradesh High Court paid
emphasis on the report according to which the length of the pregnancy was 20
weeks. Following directives were issued by the High Court in this regard:

 In the case of a minor, the consent of the petitioner is enough for the
termination of pregnancy and it is not essential to obtain the consent of
the minor victim.

 The right to termination of pregnancy flows from Article 21 of the Indian

Constitution.

 A committee constituted of 3 registered medical practitioners has to form

an opinion regarding the termination of pregnancy in accordance with
the Medical Termination of Pregnancy Act, 1971.

 If the Committee gives permission to terminate the pregnancy, then all

the services and assistance are to be provided to the victim by the
Respondent i.e. State. 

 In case of termination of the pregnancy, the DNA sample of the foetus is

to be kept in a sealed cover in accordance with the procedure. 

Shortcomings of the POCSO Act, 2012

There are various loopholes in the procedure and implementation of the laws
specified under the POCSO Act. Following are some criticisms:

 Problem with the application of the last seen theory: The last seen
theory can lead to wrongful conviction in several cases and therefore, it
cannot be applied without circumstantial evidence. It was held by the
Supreme Court in the case of Anjan Kumar Sarma v. State of
Assam (2017), that the last seen theory is a weak piece of evidence and
cannot be relied upon single-handedly. 

 Unprepared investigation machinery: The investigation machinery in

the child sexual abuse cases is not well acquainted with the procedure
which leads to a faulty investigation. For instance, in the case of the Addl.
Sessions Judge, Hoingoli and Ors. v. Bhawat and Ors. (2017), the High
 Court of Bombay acquitted the alleged accused as the frock of the victim
which was in the custody of police was unsealed and therefore, the semen
stains on the frock could not be relied upon for the conviction. 

 Silent on consensual sexual activities: In case of sexual intercourse with

consent, one of which is minor, the partner who is not minor can be
prosecuted under the POCSO Act as the consent of a minor is not
considered relevant under this Act. 

 False complaints by children are not punishable: Section 22 of the

POCSO Act provides for the punishment to the persons who file a false
complaint in order to humiliate, extort, threaten or defame another
person. However, a child is exempted from any such punishment which is
a loophole as many people take advantage of this exemption and misuse
this provision. 

 Pending cases: Although, the POCSO Act specifies that “the Special

Court shall complete the trial, as far as possible, within a period of one
year from the date of taking cognizance of the offence” under Section
35(2) but the number of pending cases is rising which is creating a huge
problem in making the justice mechanism effective. 

 Two-finger test violates privacy and dignity: Two-finger test is

administered on the victims of sexual assault while conducting their
medical examination. If the vagina of a girl is capable of allowing two
fingers to move freely then it is inferred that the victim has been
subjected to repeated sexual intercourse. This test is conducted on the
minor girls against whom any offence under the POCSO Act is
committed. Although the government banned this test in the year 2012, it
is still administered. In the case of Lillu @ Rajesh and another v. State of
Haryana (2013), it was observed that the administration of two-
finger tests breaches the right to privacy, dignity and mental integrity of a
woman and hence it is unconstitutional. 
Conclusion
The POCSO Act, 2012 is exhaustive legislation which aims at covering all the
aspects of child sexual abuse. Amendment has been made in the Act via the
Protection of Children from Sexual Offences (Amendment) Act, 2019, with
which the punishments for the offenecs have been made more stringent. 

The need of the hour is to sensitize the public regarding child sexual abuse so
that there is no reluctance in reporting these crimes. Moreover, the investigating
agencies should be well trained and professionals such as medical practitioners
involved in the stages of investigation and trial should be efficient so as to leave
any scope of negligence on their part. The POCSO Act already makes the
procedure child friendly and this approach should be followed by the judicial
officers, magistrates, and police officers so that the child victims could repose
trust in them. 
REFFERENCE

1 MALIK AND RAAL : LAW AND SOCIAL TRANSFORMATION

2 DR. NIMMI : OFFENCE AGAINST SHILDREN INCLUDING JUVENILE

JUSTICE AND POCSO, (SHREE RAM LAW HOUSE)

3 TIMES OF INDIA EDITORIAL

4 PROTECTION OF CHILDREN FROM SEXUAL OFFENCES