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PAPER PRESENTATION AND DISCUSSION ON THE TOPICS OF NATURE OF OFFENCES UNDER

POCSO ACT, 2012 AND PROCEDURE IN POCSO CASES.

The Preamble to the POCSO Act states that it was enacted with reference to Article 15(3)

of the Constitution. The Preamble recognizes that the best interest of a child should be

secured, a child being defined under Section 2(d) as any person below the age of 18 years. In

fact, securing the best interest of the child is an obligation cast upon the Government of India

having acceded to the Convention on the Rights of the Child (the CRC).

The Preamble to the POCSO Act also recognizes that it is imperative that the law should

operate “in a manner that the best interest and well being of the child are regarded as being

of paramount importance at every stage, to ensure the healthy, physical, emotional,

intellectual and social development of the child”. Finally, the Preamble also provides that

“sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively

addressed”. This is directly in conflict with Exception 2 to Section 375 of the IPC which

effectively provides that the sexual exploitation or sexual abuse of a girl child is not even a

crime, let alone a heinous crime – on the contrary, it is a perfectly legitimate activity if the

sexual exploitation or sexual abuse of the girl child is by her husband.

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
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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.

Before the introduction of the POCSO Act, 2012, 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.

The following offences mentioned under the POCSO Act can be heard by the Special Court:

• Sexual offences: Penetrative sexual assault, aggravated penetrative sexual assault, sexual

assault, aggravated sexual assault, sexual harassment, use of a child for pornographic

purposes, storage of pornographic materials involving a child are the seven types of

sexual offences under this Act.

• Attempt/ Abetment:

• Media violation IPC 228 (A)

• False Complaints:
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• Failure to report:

•Failure to record cases:

• Offences under other Acts:

•Offence under Section 67B of the Information Technology Act, 2000:

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 vs 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 vs 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
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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.

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Sexual harassment: Section 11 of the POCSO Act defines sexual harassment. It includes six

cases which constitute sexual harassment of a child.

First, if anyone utters any word or makes any sound or exhibits any object with sexual intent

to a child.

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

other person.

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

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

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.

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
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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.

NIPUN SAXENA VS UNION OF INDIA, 11 Dec 2018, 2019 2 SCC 703; 2019 1 SCC(Cri) 772 (DB)

4. Unfortunately, in our society, the victim of a sexual offence, especially a victim of rape,

is treated worse than the perpetrator of the crime. The victim is innocent. She has been

subjected to forcible sexual abuse. However, for no fault of the victim, society instead of

empathizing with the victim, starts treating her as an ‘untouchable’. Many times, even her

family refuses to accept her back into their fold. The harsh reality is that many times cases of

rape do not even get reported because of the false notions of so called ‘honour’ which the

family of the victim wants to uphold. The matter does not end here. Even after a case is lodged

and FIR recorded, the police, more often than not, question the victim like an accused. If the

victim is a young girl who has been dating and going around with a boy, she is asked in

intimidating terms as to why she was dating a boy. The victim’s first brush with justice is an

unpleasant one where she is made to feel that she is at fault; she is the cause of the crime.

5. If the victim is strong enough to deal with the recriminations and insinuations

made against her by the police, . In Court the victim is subjected to a harsh cross-examination

wherein a lot of questions are raised about the victim’s morals and character. The Presiding

Judges sometimes sit like mute spectators and normally do not prevent the defence from

asking such defamatory and unnecessary questions. We want to make it clear that we do not,
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in any manner, want to curtail the right of the defence to cross-examine the prosecutrix, but

the same should be done with a certain level of decency and respect to women at large.

“228A. Disclosure of identity of the victim of certain offences etc.

(1) Whoever prints or publishes the name or any matter which may make known the

identity of any person against whom an offence under section 376, section 376A,

section 376AB, section 376B, section 376C, section 376D, section 376DA, section

376DB or section 376E is alleged or found to have been committed shall be punished

with imprisonment of either description for a term which may extend to two years

and shall also be liable to fine.

(2) Nothing in subsection (1) extends to any printing or publication of the name or any

matter which may make known the identity of the victim if such printing or

publication is

(a) by or under the order in writing of the officer incharge of the police station or the

police officer making the investigation into such offence acting in good faith for the

purposes of such investigation; or

(b) by, or with the authorisation in writing of, the victim; or

(c) where the victim is dead or minor or of unsound mind, by, or with the authorisation

in writing of, the next of kin of the victim:

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State of Punjab Vs Gurmeet singh (1996) 2 SCC 384 Provided that no such

authorisation shall be given by the next of kin to anybody other than the chairman

or the secretary, by whatever name called, of any recognized welfare institution or

organization. Explanation for the purposes of this subsection, "recognized welfare

institution or organization" means a social welfare institution or organization

recognized in this behalf by the Central or State Government. (3) Whoever prints

or publishes any matter in relation to any proceeding before a court with respect

to an offence referred to in subsection (1) without the previous permission of such

Court shall be punished with imprisonment of either description for a term which

may extend to two years and shall also be liable to fine.

In Re: Alarming Rise in the Number of Reported Child Rape Incidents VS 2019 0 Supreme(SC)

871; It was held that , (i) In each district of the country, if there are more than 100 cases

under the POCSO Act, an exclusive/ designated special Court will be set up, which will try

no other offence except those under the POCSO Act. (ii) Such Courts will be set up under

a Central scheme.

Re: Exploitation Of Children In Orphanages In The State Of Tamil Nadu V/S Union Of India

(2017) 7 Scc 578 : (2017) 2 Sccrir 847 Writ Petition (Criminal) No. 102 Of 2007 Decided

On : 05-05-2017. In this case, the Supreme Court took suo motu cognizance of a

newspaper article that exposed the poor state of orphanages in Mahabalipuram (Tamil
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Nadu) with several incidences of child sexual abuse within the institutions as well as

incidences of children being used to provide sexual services to tourists. The article also

exposed sexual abuse against children in educational institutions including government

schools. While assessing who a ‘child in need of care and protection’ included, the court

observed that the definition in the JJ Act, 2015 excluded certain categories of children.

The court in this regard opined that the definition must not be treated as an exhaustive

list and be the basis of excluding certain children.

Sampurna Behura v. Union of India, (2018) 2 SCALE 209 Wherein it is held that “It is

important for the police to appreciate their role as the first responder on issues

pertaining to offences allegedly committed by children as well as offences committed

against children. There is therefore a need to set up meaningful Special Juvenile Police

Units and appoint Child Welfare Police Officers in terms of the JJ Act at the earliest and

not only on paper. In this context, it is necessary to clearly identify the duties and

responsibilities of such Units and Officers and wherever necessary, guidance from the

available expertise, either the National Police Academy or the Bureau of Police Research

and Development or NGOs must be taken for the benefit of children.”

Responsibilities of the Special Court:

Under the POCSO Act, the Special Court must take the following measures at the time of the

trial.

> Permit frequent breaks for the child

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> Create a child-friendly atmosphere by allowing a family member or any person the child trust

to be present

> Ensure that the child is not summoned to testify time and again

> Ensure that the dignity of the child is maintained by disallowing aggressive questioning or

character assassination of the child

> Ensure the identity of the child is not disclosed during the investigation or trial . As far as

possible, ensure that the trial is completed within one year from the date of taking cognizance

of the offence.

> The Special Court is also in a position to order interim compensation to meet the relief and

rehabilitation needs of the child, any time after the FIR is registered. This order can be passed

based on an application by or on behalf of the child, or by the court itself. The

compensation that is awarded is payable by the State Government from the Victims

Compensation Fund or other similar schemes that have been established for compensating

victims under section 357 A of the Code of Criminal Procedure and is payable within 30 days

of the receipt of the order.

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 criminal Procedure

1973, Indian Penal Code, Juvenile Justice Act and Information Technology Act,2000 overlap

and encapsulate the procedure and specify the offences.

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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
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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

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.

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.

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.

Some of the salient features of the POCSO Act

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
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identity of the child”. In the landmark case of Bijoy @ Guddu Das vs 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.

Procedures of the Special Court

Under the POCSO Act Section 28(1), the State Government in consultation with the Chief

Justice of the High Court, should designate a Sessions Court to be a Special Court in every

district to try offences under the Act. As per the provisions contained in POCSO Act,

Section 28(2) the Special Court can try offences under the POCSO Act and offences with

which the accused is charged under the I.P.C. at the same trial.

E. REGISTRATION OF FIR IS MANDATORY

Lalita Kumari v. Govt. of U.P. and Ors., AIR 2014 SC 187

The following directions were laid down by a Constitutional Bench of the Honorable

Supreme Court: i) Registration of FIR is mandatory under Section 154 of the Code, if the

information discloses commission of a cognizable offence and no preliminary inquiry is

permissible in such a situation. ii) If the information received does not disclose a
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cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be

conducted only to ascertain whether cognizable offence is disclosed or not.

iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered.

In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of

such closure must be supplied to the first informant forthwith and not later than one

week. It must disclose reasons in brief for closing the complaint and not proceeding

further.

iv) The police officer cannot avoid his duty of registering offence if cognizable offence is

disclosed. Action must be taken against erring officers who do not register the FIR if

information received by him discloses a cognizable offence.

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information

received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on

the facts and circumstances of each case. The category of cases in which preliminary

inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b)

Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where

there is abnormal delay/laches in initiating criminal prosecution, for example, over 3

months delay in reporting the matter without satisfactorily explaining the reasons for

delay. The aforesaid are only illustrations and not exhaustive of all conditions which may

warrant preliminary inquiry.

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vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary

inquiry should be made time bound and in any case it should not exceed fifteen days

generally and in exceptional cases, by giving adequate reasons, six weeks time is provided.

The fact of such delay and the causes of it must be reflected in the General Diary entry.

viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received

in a police station, we direct that all information relating to cognizable offences, whether

resulting in registration of FIR or leading to an inquiry, must be mandatorily and

meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry

must also be reflected, as mentioned above.

Cognizance and Disposal

Special Courts can take cognizance directly without committal.(Section 33(1), POCSO Act).

The police should thus submit the charge-sheet to the Special Court under the POCSO Act.

They must record the evidence of the child within 30 days of taking cognizance and record

reasons for the delay.(Section 35(1), POCSO Act) They must complete the trial within one

year of taking cognizance, as far as possible. (Section 35(2), POCSO Act). How to Ascertain

if a Child Witness Understands the Difference between Truth and Lie

In State v. Sujeet Kumar, the Delhi High Court was critical of the inappropriate questions

posed by a Magistrate to assess the competence of a two-and-a-half year old child victim of a

brutal rape before recording her statement under Section 164, Cr. P.C. It found the questions

to the child about the school she went to and the class she studied in highly inappropriate as

the child lived in a slum and did not attend any school. The Magistrate then asked her if she
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understood the term “truth” and the difference between truth and lie. The High Court

observed: “How could a two and half year old child explain the meaning of word “truth” and

state difference between truth and lie. It is very difficult, even for adults, to respond to abstract

questions asking them to explain the conceptual difference between truth and lie. What to

talk of a two and half year old child.”

Jarnail Singh v. State of Haryana, (AIR 2013 SC 3467)

The Honorable Supreme Court held that Rule 12 of the erstwhile Juvenile Justice (Care and

Protection of Children) Rules, 2007, which detailed the age determination process for children

in conflict with the law should be applied to determine the age of a child victim. It was held

that:(“Even though Rule 12 is strictly applicable only to determine the age of a child in conflict

with law, we are of the view that the aforesaid statutory provision should be the basis for

determining age, even for a child who is a victim of crime. For, in our view, there is hardly any

difference in so far as the issue of minority is concerned, between a child in conflict with law,

and a child who is a victim of crime.”

2. State of M.P. v. Anoop Singh (2015) 7 SCC 773 : 2015 SCC OnLine SC 603 at page 776 “12.

We believe that the present case involves only one issue for this Court to be considered, which

is regarding the determination of the age of the prosecutrix. 13. In the present case, the central

question is whether the prosecutrix was below 16 years of age at the time of the incident? The

prosecution in support of their case adduced two certificates, which were the birth certificate

and the Middle School Certificate. The date

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of birth of the prosecutrix has been shown as 29-8-1987 in the birth certificate (Ext.) P-5),

while the date of birth is shown as 27-8-1987 in the Middle School Examination Certificate.

There is a difference of just two days in the dates mentioned in the above mentioned exhibits.

The trial court has rightly observed that the birth certificate, Ext.P-5 clearly shows that the

registration regarding the birth was made on 30-10-1987 and keeping in view the fact that

registration was made within 2 months of the birth, it could not be guessed that the

prosecutrix was shown as under aged in view of the possibility of the incident in question. We

are of the view that the discrepancy of two days in the two documents adduced by the

prosecution is immaterial and the High Court was wrong in presuming that the documents

could not be relied upon in determining the age of the prosecutrix.14. In Mahadeo v. State of

Maharashtra [(2013) 14 SCC 637 : (2014) 4 SCC (Cri) 306] it has held that Rule 12(3) of the

Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the

age of the victim of rape. Rule 12(3) reads as under:“12.(3) In every case concerning a child or

juvenile in conflict with law, the age determination inquiry shall be conducted by the court or

the Board or, as the case may be, the Committee by seeking evidence by obtaining—(a)(i) the

matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date

of birth certificate from the school first attended (other than a play school); and in the absence

whereof; (iii) the birth certificate given by a corporation or a municipal authority or a

panchayat; b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical

opinion will be sought from a duly constituted Medical Board, which will declare the age of

the juvenile or child. In case exact assessment of the age cannot be done, the Court or the
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Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if

considered necessary, give benefit to the child or juvenile by considering his/her age on lower

side within the margin of one year and, while passing orders in such case shall, after taking

into consideration such evidence as may be available, or the medical opinion, as the case may

be, record a finding in respect of his age and either of the evidence specified in any of the

clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the

age as regards such child or the juvenile in conflict with law.” 15. This Court further held in para

12 of Mahadeo [(2013) 14 SCC 637 : (2014) 4 SCC (Cri) 306] , as under: (SCC p. 641)“12. ...

Under Rule 12(3)(b), it is specifically provided that only in the absence of alternative

methods described under Rules 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the

light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our

considered opinion, the same yardstick can be rightly followed by the courts for the purpose

of ascertaining the age of a victim as well.” This Court therefore relied on the certificates issued

by the school in determining the age of the prosecutrix. In para 13, this Court observed:

(Mahadeo case [(2013) 14 SCC 637 : (2014) 4 SCC (Cri) 306] , SCC p. 641) “13. In light of our

above reasoning, in the case on hand, there were certificates issued by the school in which the

prosecutrix did her Vth standard and in the school leaving certificate issued by the school

under Ext. 54, the date of birth of the prosecutrix has been clearly noted as 20-5-1990, and

this document was also proved by PW 11. Apart from that the transfer certificate as well as

the admission form maintained by the Primary School,

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Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20-

5-1990. The reliance placed upon the said evidence by the courts below to arrive at the age of

the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of the

occurrence was perfectly justified and we do not find any grounds to interfere with the same.”

16. In the present case, we have before us two documents which support the case of the

prosecutrix that she was below 16 years of age at the time the incident took place. These

documents can be used for ascertaining the age of the prosecutrix as per Rule 12(3) (b). The

difference of two days in the dates, in our considered view, is immaterial and just on this minor

discrepancy, the evidence in the form of Exts. P-5 and P-6 cannot be discarded. Therefore, the

trial court was correct in relying on the documents.

17. The High Court also relied on the statement of PW 11 Dr A.K. Saraf who took the x-ray of

the prosecutrix and on the basis of the ossification test, came to the conclusion that the age

of the prosecutrix was more than 15 years but less than 18 years. Considering this the High

Court presumed that the girl was more than 18 years of age at the time of the incident. With

respect to this finding of the High Court, we are of the opinion that the

High Court should have relied firstly on the documents as stipulated under Rule 12(3) (b) and

only in the absence, the medical opinion should have been sought. We find that the trial court

has also dealt with this aspect of the ossification test. The trial court noted that the respondent

had cited Lakhanlal v. State of M.P. [2004 SCC OnLine MP 16 : 2004 Cri LJ 3962] , wherein the

High Court of Madhya Pradesh said that where the doctor having examined the prosecutrix

and found her to be below 181⁄2 years, then

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keeping in mind the variation of two years, the accused should be given the benefit of doubt.

Thereafter, the trial court rightly held that in the present case the ossification test is not the

sole criterion for determination of the date of birth of the prosecutrix as her certificate of birth

and also the certificate of her medical examination had been enclosed. 18. Thus, keeping in

view the medical examination reports, the statements of the prosecution

witnesses which inspire confidence and the certificates proving the age of the prosecutrix to

be below 16 years of age on the date of the incident, we set aside the impugned judgment

[Anoop Singh v. State of M.P., Criminal Appeal No. 924 of 2006, order dated 10-7- 2008 (MP)]

passed by the High Court and uphold the judgment and order dated 24-4- 2006 passed by the

Third Additional Sessions Judge, Satna in Special Case No. 123 of 2003.”

Facilitation of Recording of Statement under Section 164, Cr.P.C., by the Magistrate. The

POCSO Act does not mandate that a statement under Section 164, Cr.P.C. be recorded in every

case. However, pursuant to the Criminal Law (Amendment) Act, 2013, Section 164(5-A)(a), the

statement of victim against whom offences has been committed under Sections 354, 354-A,

354-B, 354-C, 354-D, 376(1), 376(2), 376-A, 376-B, 376-C, 376- D, 376-E or 509 of the IPC shall

be recorded by a Judicial Magistrate. As per the provisions of Section 164(5-A)(a) Cr.P.C.,The

statement should be recorded as soon as the commission is brought to the notice of the police.

In cases of rape, the IO should take the victim within 24 hours to any Metropolitan/preferably

Judicial Magistrate for recording the 164 statement and preferably to a Lady Magistrate State

of Karnataka v. Shivanna, (2014) 8 SCC 913.

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12. False complaint and False information under POCSO Act.

The POCSO Act under section 22 prohibits any person from making a false complaint or

providing false information against a person in respect of an offence committed under section

3, 5, 7, and 9 of the POCSO Act dealing with penetrative sexual assault and sexual assault solely

with the intention to humiliate, extort or threaten or defame him. No liability is incurred in

respect of information given in good faith.

The POCSO Act prohibits the prosecution of a child for making a false complaint or providing

false information regarding the commission of an offence under the POCSO Act.

Tuka Ram And Anr vs State of Maharashtra, AIR 1979 SC 185 Mathura Case In Mathura rape

case, a young tribal girl named Mathura was allegedly raped by two policemen while she was

in custody. It was the incident of custodial rape, took place on March 26th , 1972, where the

girl was raped in Desai Gunj Police Station in Maharashtra.

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
 22

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 Honorable 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 counter argument 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
 23

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
 24

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.

RECORDING OF COMPLAINT AND INVESTIGATION BY POLICE

 25

(i) On a complaint of a cognizable offence involving a child victim being made, concerned police

officer shall record the complaint promptly and accurately.

(ii) Upon receipt of a complaint or registration of FIR for any of the aforesaid offences,

immediate steps shall be taken to associate a scientist from Forensic Science Laboratory

or some other Laboratory or department in the investigations. The Investigating Officer

shall conduct investigations on the points suggested by him also under his guidance and

advice.

(iii) The investigation of the case shall be referred to an officer not below the rank of Sub-

Inspector, preferably a lady officer, sensitized by imparting appropriate training to deal

with child victims of sexual crime.

(iv) The statement of the victim shall be recorded verbatim.

(v) The officer recording the statement of the child victim should not be in police uniform.

(vi) The statement of the child victim shall be recorded at the residence of the victim or at any

other place where the victim can make a statement freely without fear.

(vii) The statement should be recorded promptly without any loss of time.

(viii) The parents of the child or any other person in whom the child reposes trust and

confidence will be allowed to remain present.

(ix) The Investigating Officer to ensure that at no point should the child victim come in contact

with the accused.

(x) The child victim shall not be kept in the police station overnight on any pretext, whatsoever,

including medical examination.

 26

(xi) The Investigating Officer recording the statement of the child victim shall ensure that the

victim is made comfortable before proceeding to record the statement and that the

statement carries accurate narration of the incident covering all relevant aspects of the

case.

(xii) In the event the Investigating Officer should so feel the necessity, he may take the

assistance of a psychiatrist.

(xiii) The Investigating Officer shall ensure that the child victim is medically examined at the

earliest preferably within twenty four hours (in accordance with Section 164A Cr.P.C) at

the nearest government hospital or hospital recognized by the government.

(xiv) The Investigating Officer shall ensure that the investigating team visits the site of the

crime at the earliest to secure and collect all incriminating evidence available.

(xv) The Investigating Officer shall promptly refer for forensic examination,clothings and

articles necessary to be examined, to the forensic laboratory which shall deal with such

cases on priority basis to make its report available at an early date.

(xvi) The investigation of the cases involving sexually abused child may be investigated on a

priority basis and completed preferably within ninety days of the registration of the case.

The investigation shall be periodically supervised by senior officer

(xvii) The Investigating Officer shall ensure that the identity of the child victim is protected

from publicity.

(xviii) To ensure that the complainant or victim of crime does not remain in dark about the

investigations regarding his complaint/FIR, the complainant or victim shall be kept

 27

informed about the progress of investigations. In case the complainant gives anything in

writing and requests the I.O, for investigations on any particular aspect of the matter, the

same shall be adverted to by the I.O Proper entries shall be made by I.O in case diaries in

regard to the steps taken on the basis of the request made by the complainant. The

complainant, however, shall not be entitled to know the confidential matters, if any, the

disclosure of which may jeopardize the investigations.

(xix) Whenever the Magistrate is requested to record a dying declaration, video recording also

shall be done with a view to obviate subsequent objections to the genuineness of the

dying declaration.

(xx) The investigations for the aforesaid offences shall be personally supervised by the ACP of

the area. The concerned DCP shall also undertake fortnightly review thereof.

(xxi) The material prosecution witnesses cited in any of the aforesaid offences shall be ensured

safety and protection by the SHO concerned, who shall personally attend to their

complaints, if any.

(xxii) Wherever possible, the IO shall ensure that the statement of the child victim is also video

recorded.

RECORDING OF STATEMENT BEFORE MAGISTRATE

(i) The statement of the child victim shall be recorded promptly and at the earliest by the

concerned Magistrate and any adjournment shall be avoided and in case the same is

unavoidable, reasons to be recorded in writing.

 28

(ii) In the event of the child victim being in the hospital, the concerned Magistrate shall record

the statement of the victim in the hospital.

(iii) To create a child friendly environment separate rooms be provided within the Court

precincts where the statement of the child victim can be recorded.

(iv) The child victim shall not be separated from his/her parents/guardians nor taken out from

his/her environment on the ground of “Ascertaining voluntary nature of statement”

unless the parents/guardian is reported to be abusive or the Magistrate thinks it

appropriate in the interest of justice.

(v) Wherever possible, the IO shall ensure that the statement of the child victim is also video

recorded.

(vi) No Court shall detain a child in an institution meant for adults.

MEDICAL EXAMINATION

(i) Orientation be given to the Doctors, who prepare MLCs or conduct post mortems to ensure

that the MLCs as well as post mortem reports are up to the mark and stand judicial

scrutiny in Courts.

(ii) While conducting medical examination, child victim should be first made comfortable as it

is difficult to make her understand as to why she is being subjected to a medical

examination.

(iii) In case of a girl child victim the medical examination shall be conducted preferably by a

female doctor.
 29

(iv) In so far as it may be practical, psychiatrist help be made available to the child victim before

medical examination at the hospital itself.

(v) The report should be prepared expeditiously and signed by the doctor conducting the

examination and a copy of medical report be provided to the parents/guardian of the child

victim.

(vi) In the event results of examination are likely to be delayed, the same should be clearly

mentioned in the medical report.

(vii) The parents/guardian/person in whom child have trust should be allowed to be present

during the medical examination.

(viii) Emergency medical treatment wherever necessary should be provided to the child

victim.

(ix) The child victim shall be afforded prophylactic medical treatment against STDs.

(x) In the event the child victim is brought to a private/nursing home, the child shall be afforded

immediate medical attention and the matter be reported to the nearest police station.

PROCEEDINGS IN COURT

(i) To create a child friendly environment separate rooms be provided within the Court

precincts where the statement of the child victim can be recorded.

(ii) In case of any disability of the victim or witness involving or impairing communication skills,

assistance of an independent person who is in a position to relate to and communicate

with such disability requires to be taken.

 30

(iii) The trials into allegations of commission of rape must invariably be “in camera”. No request

in this behalf is necessary.

(iv) The Committal Court shall commit such cases to the Court of Sessions preferably within

fifteen days after the filing of the charge sheet.

(v) The child witness should be permitted to testify from a place in the courtroom which is

other than the one normally reserved for other witnesses.

(vi) To minimise the trauma of a child victim or witness the testimony may be recorded through

video conferencing or by way of a close circuit television. If this is not possible, a screen

or some arrangement be made so that the victims or the child witness do not have to

undergo seeing the body or face of the accused. The screen which should be used for the

examination of the child witness or a victim should be effective and installed in such

manner that the witness is visible to the trial judge to notice the demeanour of the

witness. Single visibility mirrors may be utilised which while protecting the sensibilities of

the child, shall ensure that the defendant's right to cross-examination is not impaired.

(vii) Competency of the child witness should be evaluated and order be recorded thereon.

(viii) The trial court is required to be also satisfied and ought to record its satisfaction that the

child witness understands the obligation to speak the truth in the witness box. In addition

to the above, the court is required to be satisfied about the mental capacity of the child

at the time of the occurrence concerning which he or she is to testify as well as an ability

to receive an accurate impression thereof. The court must be satisfied that the child
 31

witness has sufficient memory to retain an independent recollection of the occurrence

and a capacity to express in words or otherwise his or her memory of the same. The court

has to be satisfied that the child witness has the capacity to understand simple questions

which are put to it about the occurrence. There can be no manner of doubt that record of

the evidence of the child witness must contain such satisfaction of the court.

(ix) As far as possible avoid disclosing the name of the prosecutrix in the court orders to save

further embarrassment to the victim of the crime; anonymity of the victim of the crime

must be maintained as far as possible throughout.

(x) The statement of the child victim shall be recorded promptly and at the earliest by the

concerned Magistrate and any adjournment shall be avoided and in case the same is

unavoidable, reasons to be recorded in writing.

(xi) The court should be satisfied that the victim is not scared and is able to reveal what has

happened to her when she is subjected to examination during the recording of her

evidence. The court must ensure that the child is not concealing portions of the evidence

for the reason that she has bashful or ashamed of what has happened to her.

(xii) It should be ensured that the victim who is appearing as a witness is at ease so as to

improve upon the quality of her evidence and enable her to shed hesitancy to depose

frankly so that the truth is not camouflaged on account of embarrassment at detailing the

occurrence and the shame being felt by the victim.

(xiii) Questions should be put to a victim or to the child witness which are not connected to

case to make him/her comfortable and to depose without any fear or pressure;
 32

(xiv) The trial judge may permit, if deemed desirable to have a social worker or other friendly,

independent or neutral adult in whom the child has confidence to accompany the child

who is testifying . This may include an expert supportive of the victim or child witness in

whom the witness is able to develop confidence should be permitted to be present and

accessible to the child at all times during his/her testimony. Care should be taken that

such person does not influence the child's testimony.

(xv) Persons not necessary for proceedings including extra court staff be excluded from the

courtroom during the hearing.

(xvi) Unless absolutely imperative, repeated appearance of the child witness should be

prevented.

(xvii) It should be ensured that questions which are put in cross examination are not designed

to embarrass or confuse victims of rape and sexual abuse .

(xviii) Questions to be put in cross examination on behalf of the accused, in so far as they relate

directly to the offence, should be given in writing to the presiding officer of the court who

may put them to the victim or witnesses in a language which is clear and is not

embarrassing.

(xix) The examination and cross examination of a child witness should be carefully monitored

by the presiding judge to avoid any attempt to harass or intimidate the child witness.

(xx) It is the duty of the court to arrive at the truth and subserve the ends of justice.
 33

(xxi) The judge is expected to actively participate in the trial, elicit necessary materials from

the witnesses at the appropriate context which he feels necessary for reaching the correct

conclusion.

(xxii) The court should ensure that the embarrassment and reservations of all those concerned

with the proceedings which includes the prosecutrix, witnesses,counsels may result in

camouflage of the ingredients of the offence. The judge has to be conscious of these

factors and rise above any such reservations on account of embarrassment to ensure that

they do not cloud the truth and the real actions which are attributable to the accused

persons.

(xxiii) The court should ascertain the spoken language of the witness as well as range of

vocabulary before recording the deposition. In making the record of the evidence court

should avoid use of innuendos or such expressions which may be variably construed. For

instance “gandiharkatein” or “batamezein” have no definite meaning. Therefore, even if

it is necessary to record the words of the prosecutrix, it is essential that what those words

mean to her and what is intended to be conveyed are sensitively brought out.

(xxiv) The court should ensure that there is no use of aggressive, sarcastic language or a

gruelling or sexually explicit examination or cross examination of the victim or child

witness. The court should come down with heavily to discourage efforts to promote

specifics and/or illustration by any of the means offending acts which would traumatise

the victim or child witness and effect their testimony. The court has to ensure that no
 34

element of vulgarity is introduced into the court room by any person or the record of the

proceedings.

(xxv) In order to elicit complete evidence, a child witness may use gestures. The courts must

carefully translate such explanation or description into written record.

(xxvi) The victim of child abuse or rape or a child witness, while giving testimony in court

should be allowed sufficient breaks as and when required.

(xxvii) Cases of sexual assaults on females be placed before lady judges wherever available.

To the extent possible, efforts be made that the staff in the courtroom concerned

with such cases is also of the same gender.

(xxviii) The judge should be balanced, humane and ensure protection of the dignity of the

vulnerable victim. There should be no expression of gender bias in the proceedings.

No humiliation of the witness should be permitted either in the examination in chief

or the cross examination.

(xxix) A case involving a child victim or child witness should be prioritised and appropriate

action taken to ensure a speedy trial to minimise the length of the time for which the

child must endure the stress of involvement in a court proceeding. The mere sight of

the accused may induce an element of extreme fear in the mind of the victim or the

witnesses or can put them in a state of shock. In such a situation he or she may not be

able to give full details of the incident which may result in miscarriage of justice.

Therefore, a screen or some such arrangement can be made where the victim or

witnesses do not have to undergo the trauma of seeing the body or the face of the
 35

accused. Often the questions put in cross-examination are purposely designed to

embarrass or confuse the victims of rape and child abuse. The object is that out of the

feeling of shame or embarrassment, the victim may not speak out or give details of

certain acts committed by the accused. It will, therefore, be better if the questions to

be put by the accused in cross-examination are given in writing to the presiding officer

of the court, who may put the same to the victim or witnesses in a language which is

not embarrassing. There can hardly be any objection to the other suggestion given by

the petitioner that whenever a child or victim of rape is required to give testimony,

sufficient breaks should be given as and when required. The provisions of sub-section

(2) of Section 327 CrPC should also apply in inquiry or trial of offences under Sections

354 and 377 IPC.

Sakshi and Ors. v. Union of India (UOI) and Ors., (2004) 5 SCC 518 Held that in holding trial

of child sex abuse or rape, the courts must comply with the following guidelines: (I) a

screen or some such arrangements may be made where the victim or witnesses (who

may be equally vulnerable like the victim) do not see the body or face of the accused;

In State of Punjab v. Gurmit Singh [(1996) 2 SCC 384] The importance of provisions of

Sections 327(2) and (3) CrPC and a direction was issued not to ignore the mandate of

the aforesaid provisions and to hold the trial of rape cases in-camera. It was also

pointed out that such a trial in- camera would enable the victim of the crime to be a

little comfortable and answer the questions with greater ease and thereby improve the
 36

quality of evidence of a prosecutrix because there she would not be so hesitant or

bashful to depose frankly as she may be in an open court, under the gaze of the public.

It was further directed that as far as possible trial of such cases may be conducted by

lady judges wherever available so that the prosecutrix can make a statement with

greater ease and assist the court to properly discharge its duties, without allowing the

truth to be sacrificed at the altar of rigid technicalities. The writ petition is accordingly

disposed of with the following directions:

(1) The provisions of sub-section (2) of Section 327 CrPC shall, in addition to the offences

mentioned in the sub-section, also apply in inquiry or trial of offences under Sections

354 and 377 IPC.

In holding trial of child sex abuse or rape:

(i) a screen or some such arrangements may be made where the victim or witnesses (who

may be equally vulnerable like the victim) do not see the body or face of the accused;

(ii) the questions put in cross-examination on behalf of the accused, insofar as they relate

directly to the incident, should be given in writing to the presiding officer of the court

who may put them to the victim or witnesses in a language which is clear and is not

embarrassing;

(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed

sufficient breaks as and when required. These directions are in addition to those given

in State of Punjab v.GurmitSingh[(1996) 2 SCC 384] .

 37

• The court also relied upon State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, to direct that

along with the rape cases, the inquiry and trial in the cases of section 354 and 377 should

be held in camera.

The directions of the court are extracted from State of Punjab v. Gurmit Singh, (1996) 2 SCC

384 at page 403

“22. There has been lately, lot of criticism of the treatment of the victims of sexual assault in

the court during their cross-examination. The provisions of Evidence Act regarding

relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual

questioning of the prosecutrix as to the details of the rape. The victim is required to repeat

again and again the details of the rape incident not so much as to bring out the facts on

record or to test her credibility but to test her story for inconsistencies with a view to

attempt to twist the interpretation of events given by her so as to make them appear

inconsistent with her allegations. The court, therefore, should not sit as a silent spectator

while the victim of crime is being cross- examined by the defence. It must effectively

control the recording of evidence in the court. While every latitude should be given to the

accused to test the veracity of the prosecutrix and the credibility of her version through

cross-examination, the court must also ensure that cross examination is not made a

means of harassment or causing humiliation to the victim of crime. A victim of rape, it

must be remembered, has already undergone a traumatic experience and if she is made

to repeat again and again, in unfamiliar surroundings what she had been subjected to, she

may be too ashamed and even nervous or confused to speak and her silence or a confused
 38

stray sentence may be wrongly interpreted as “discrepancies and contradictions” in her

evidence.

23. The alarming frequency of crime against women led Parliament to enact Criminal Law

(Amendment) Act, 1983 (Act 43 of 1983) to make the law of rape more realistic. By the

Amendment Act, Sections 375 and 376 were amended and certain more penal provisions

were incorporated for punishing such custodians who molest a woman under their

custody or care. Section 114-A was also added in the Evidence Act for drawing a conclusive

presumption as to the absence of consent in certain prosecutions for rape, involving such

custodians. Section 327 of the Code of Criminal Procedure which deals with the right of

an accused to an open trial was also amended by addition of sub-sections 2 and 3 after

renumbering the old section as sub-section (1). Sub-sections 2 and 3 of Section 327 CrPC

provide as follows:

“327. Court to be open.—(2) Notwithstanding anything contained in sub-section (1), the

inquiry into and trial of rape or an offence under Section 376, Section 376-A, Section 376-

B, Section 376-C or Section 376-D of the Indian Penal Code (45 of 1860) shall be conducted

in camera: Provided that the presiding Judge may, if he thinks fit, or on an application

made by either of the parties, allow any particular person to have access to, or be or

remain in, the room or building used by the court. (3) Where any proceedings are held

under sub-section (2), it shall not be lawful for any person to print or publish any matter

in relation to any such proceedings, except with the previous permission of the court.”
 39

24. These two provisions are in the nature of exception to the general rule of an open trial. In

spite of the amendment, however, it is seen that the trial courts either are not conscious

of the amendment or do not realise its importance for hardly does one come across a case

where the inquiry and trial of a rape case has been conducted by the court in camera. The

expression that the inquiry into and trial of rape “shall be conducted in camera” as

occurring in sub-section (2) of Section 327 CrPC is not only significant but very important.

It casts a duty on the court to conduct the trial of rape cases etc. invariably “in camera”.

The courts are obliged to act in furtherance of the intention expressed by the legislature

and not to ignore its mandate and must invariably take recourse to the provisions of

Section 327(2) and (3) CrPC and hold the trial of rape cases in camera. It would enable the

victim of crime to be a little comfortable and answer the questions with greater ease in

not too familiar a surroundings. Trial in camera would not only be in keeping with the self-

respect of the victim of crime and in tune with the legislative intent but is also likely to

improve the quality of the evidence of a prosecutrix because she would not be so hesitant

or bashful to depose frankly as she may be in an open court, under the gaze of public. The

improved quality of her evidence would assist the courts in arriving at the truth and sifting

truth from falsehood. The High Courts would therefore be well-advised to draw the

attention of the trial courts to the amended provisions of Section 327 CrPC and to impress

upon the Presiding Officers to invariably hold the trial of rape cases in camera, rather than

in the open court as envisaged by Section 327(2) CrPC. When trials are held in camera, it

would not be lawful for any person to print or publish any matter in relation to the
 40

proceedings in the case, except with the previous permission of the court as envisaged by

Section 327(3) CrPC. This would save any further embarrassment being caused to the

victim of sex crime. Wherever possible, it may also be worth considering whether it would

not be more desirable that the cases of sexual assaults on the females are tried by lady

Judges, wherever available, so that the prosecutrix can make her statement with greater

ease and assist the courts to properly discharge their duties, without allowing the truth

to be sacrificed at the altar of rigid technicalities while appreciating evidence in such

cases. The courts should, as far as possible, avoid disclosing the name of the prosecutrix

in their orders to save further embarrassment to the victim of sex crime. The anonymity

of the victim of the crime must be maintained as far as possible throughout. In the present

case, the trial court has repeatedly used the name of the victim in its order under appeal,

when it could have just referred to her as the prosecutrix. We need say no more on this

aspect and hope that the trial courts would take recourse to the provisions of Sections

327(2) and (3) CrPC liberally. Trial of rape cases in camera should be the rule and an open

trial in such cases an exception.”

Mukesh & Anr. vs. State for NCT of Delhi & Ors.,Nirbhaya's Case (2017) 6 SCC Facts of the

case: A 23-year-old trainee physiotherapist woman was brutally got raped repeatedly by

five adult men and a juvenile on the night of 16th December 2012 onto a moving bus in

the capital of our country. She got attacked with an iron rod due to which she had her

intestines pulled out. Later, in spite of receiving all the possible treatments, she died in

the hospital in Singapore. What was held? One accused hanged himself in the jail while
 41

other four adults were sentenced to death. A Bench of Justices Dipak Mishra, R

Banumathi, and Ashok Bhushan were unanimously passed the judgment of Death penalty

to all the accused except juvenile. The juvenile who was equally involved in the incident

and raped the woman was convicted and sentenced to three years in a reformation center.

Such an incident where humanity is treated with irreverence, which created a shock in the

collective conscience sparked nationwide revulsion and various legislative reforms in rape

laws. • After the incident, a panel was set up under the chairmanship of JS Verma (former

Chief Justice of India) for analyzing criminal laws and to suggest all the possible

amendments which can be made to enhance punishment in case of assault of extreme

nature and brutality against women in criminal law. Within a month, the panel was ready

with its report consisting of so many recommendations for changing India’s rape laws.

• As per the recommendations of the Justice Verma Committee, Criminal Law (Amendment)

Act, 2013 has passed which provides for the amendment of Indian Penal Code, 1860; Code

of Criminal Procedure, 1973, Indian Evidence Act, 1872 and Protection of Children from

Sexual Offences Act, 2012 in relation of sexual offences related laws. Act widened the

scope of rape’s definition and provided for capital punishment in rape cases that cause

the death of the victim or leave her in a permanent vegetative state. Act also provides for

several new offenses to make laws more stringent.

• One of the accused in this case was just a few months away from being 18. In spite of a

heinous offense committed by him, he was sentenced to only 3 years in a reform home as

per Juvenile Justice (Care and Protection of Children) Act, 2000. Such verdict could
 42

encourage other teenagers also to commit the similar type of crimes. So, a need of

amendment has arisen in result of which new Juvenile Justice (Care and Protection of

Children) Act, 2015 has come.

• Changes brought in JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000

• Section 4: The creation of one or more Juvenile Justice Boards for every district to examine

children in conflict with the law.

• Section 15 (Preliminary assessment into heinous offences by Board)- A preliminary

assessment of a child who is 16 or above 16 years, shall be done with regard to his mental

and physical capacity to commit such offence, with regard to his ability to understand the

consequences of the offence, if the Board is satisfied that he was capable enough to

understand all the consequences then the Board shall follow the procedure same as the

procedure of trial in summoning cases under CrPC, 1973.

• So, Board will decide whether Juvenile is supposed to send for trial as an adult or to send

him to the reform home.

Section 19 – Children’s Court may decide that child should send for a trial as an adult or not

and may pass appropriate orders after trial considering his special needs, the tenets of a

fair trial and to maintain a child-friendly atmosphere.

• 5. The Court shall also ensure that such child should be sent to a safe place till he attains the

age of 21 and thereafter, he shall be transferred to a jail.

• Section 21- Death or life imprisonment cannot be awarded to a juvenile.

• A minor who has committed any heinous crime then he would be treated as an adult.
 43

• A minor who has committed any serious offense then he may be treated as an adult only if

he is apprehended after he has attained 21 years of age.

• If the minor has committed any heinous offense and apprehended after the age of 21 years,

in that case, he will be tried as an adult and imprisonment of 7 years and above is

prescribed.

State of Maharashtra vs. Madhukar Narayan Mardikar, AIR 1991 SC 207 This is the case

where a police inspector of Bhiwandi town police station alone in uniform in the night

went to the hutment of a woman named Banubi. There, he tried to ravish her. The woman

resisted and nearby people assembled. The respondent's version was that he had raided

her hutment on receipt of information that she was dealing in illicit liquor and although

nothing incriminating was found from her house, some articles like a rubber tube, a bottle,

etc. containing country liquor were found from a nearby place which were attached as

unclaimed property. In the course of evidence recorded at the departmental enquiry it

was also brought out that Banubi was a woman of easy virtue and was having extra-marital

relationship with one BehramIrani, the Manager of Bhiwandi Talkies. She admitted that

she was the mistress of that person. Evidence was also led to show that she was known

as an ‘awara’ (vagrant) in the locality. The find of liquor from near her hutment had upset

her and in order to escape from the clutches of law she had filed a false complaint against

him. The respondent further contended that a woman. with such antecedents could stoop

to any level and it would be hazardous to rely on her version.

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• It is held by Hon’ble High Court of Bombay that he cannot be removed from his service since

Banubi was a woman of immoral character. Court held that, “she was an unchaste woman

so, it would be unsafe to allow the career of that inspector to be put in jeopardy upon the

uncorroborated version of such a woman who makes no secret of her illicit intimacy with

another person.”

• Hon’ble Supreme Court overruled the judgment and gave the order of removal of his service.

Supreme Court opined that “even a woman of easy virtue is entitled to privacy and no one

can invade her privacy as and when he likes. Therefore, merely because she is a woman

of easy virtue, her evidence cannot be thrown overboard.” So, she is very much entitled

to protect her in case of any attempt to violate her as a person. Also, while deciding the

cases of rape, past history of victim’s sex life does not matter, she is very much entitled to

the protection of the law. Independent Thought vs. Union of India and Anr.,(2017) 10

SCC 800

Independent Thought, one of the leading NGOs which deals with the child rights, had filed a

public interest litigation in the Supreme Court of India. It challenged the constitutional

validity of exception 2 to section 375 (Sexual intercourse or sexual acts by a man with his

own wife, the wife not being under fifteen years of age, is not rape) of the Indian Penal

Code.

• Whether section 375, exception 2 is violative of fundamental rights of a girl child?

Honorable, Supreme Court has criminalized the sexual intercourse with a minor wife

whose age lies between 15 and 18 years. The Court opined that the exception 2 in section
 45

375 is violative of Articles 14, 15 and 21 of the Indian Constitution which allows intrusive

sexual intercourse with a girl who is below 18 and above 15 years on the ground of

marriage. Such exception clause in Indian rape laws negates the very purpose of

Prohibition of Child Marriage Act, it violates the provisions of Protection of Children from

Sexual Offences Act (POCSO) in context of the age of consent and some other international

conventions to which India is a signatory. In this landmark verdict, Honourable Supreme

Court has struck down section 375, exception 2 of the Indian Penal Code. Now, the law

cannot protect a man who is engaged in sexual relations with his wife where she is

between 15 and 18 years because irrespective of the status of a child whether married or

not, she will always remain a child

Virender v. State of NCT of Delhi, 2009 SCC Online Del 3083

Facts: A girl aged between 12-13 years was raped by her neighbor who has loaned some

money to her father. The trial court had found him guilty. In appeal it was contended that

there were inconsistencies in the statements made by her under section 161 of the

Criminal Procedure Code(hereinafter, Crpc), section 164 of the Crpc and her deposition in

the court regarding the place of occurrence of rape. The medical certificate also did not

disclose any finding of rape.

The girl defined “galatkaam” as the act done by husband and wife at night. However, her

testimony does not reflect her understanding of the relationship shared by a husband and

a wife. Therefore, the High Court opined, “the court is required to be satisfied about the

mental capacity of the child at the time of the occurrence concerning which he or she is
 46

to testify as well as an ability to receive an accurate impression thereof. The court must

be satisfied that the child witness has sufficient memory to retain an independent

recollection of the occurrence and a capacity to express in words or otherwise his or her

memory of the same.” In the cases of sexual offences where there is a child victim or a

child witness, the Delhi High Court culled out several guidelines related to investigation,

medical examination and trial which are as follows:

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.

 47

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:

 48

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.

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
 49

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
 50

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.

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.

 51

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.

 52

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

This case throws light upon the intricacies of the medical evidence of the victim. The

Honorable 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.
 53

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.

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 vs Anirudhsingh 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 Narbahadur vs State of Sikkim (2016), teachers

received information that her student is pregnant due to repeated sexual assualts on her by
 54

an elderly accused. The teachers informed the panchayat who lodged an FIR in the police

station.

Shankar Kisanrao Khade vs State of Maharastra (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 Ghose vs 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 26 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:
 55

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.

F. USE OF DOLL TO RECORD TESTIMONY OF CHILD VICTIM In the case of Hunny v. State, Crl. A.

841/2016,06-06-2017 the child prosecutrix responded to all the questions posed to her expect

the one where she was asked about how the appellant had sexually assaulted her. She

responded to the said question by referring to the doll. The issue which arose in the High Court

was with respect to whether the testimony of a child prosecutrix could be relied upon if she

had not expressly communicated what happened to her but instead used the doll in her hand
 56

to show what the appellant had done. The Honorable Delhi High Court held that given her

young age, it was understandable why she could communicate the same in words, and held

that her testimony cannot be discarded merely because the child prosecutrix did not use

specific words to expressly communicate what the appellant had done.

Sakshi v. Union of India, AIR 2004 SC 3566:

Guidelines were issued by the Supreme Court to be followed during the trial of child sexual

abuse or rape in this case. These guidelines are particularly significant for the on-going

trials of rape cases before the enactment of the POCSO Act. The guidelines are: (i) a screen

or some such arrangements may be made where the victim or witnesses (who may be

equally vulnerable like the victim) do not see the body or writing to the Presiding. Officer

of the Court who may put them to the face of the accused;

(ii) the questions put in cross-examination on behalf of the accused, in so far as they relate

directly to the incident should be given in writing to the Presiding. Officer of the Court

who may put them to the victim or witnesses in a language which is clear and is not

embarrassing; (iii) the victim of child abuse or rape, while giving testimony in court, should

be allowed sufficient breaks as and when required.

H. JURISDICTION OF SPECIAL COURTS

The Special Court designated under the POCSO Act will have the jurisdiction to try offences

in addition to those under the POCSO Act with which the accused has been charged under

the Cr. P.C at the same trial. Where the accused has been charged under the Atrocities Act
 57

along with the POCSO Act, the matter will be tried by the Special Court under the POCSO

Act and not the Special Court under the Atrocities Act. It will also have the jurisdiction to

try offences relating to publication or transmission of sexually explicit material depicting

children in any act or conduct or manner that facilitates abuse of children online under

Section 67B, Information Technology Act, 2000. The police should thus submit the charge-

sheet to the Special Court under the POCSO Act.

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.

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.

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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 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

 59

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.