PAHUJA LAW ACADEMY

Lecture Notes
DJS Crash Course’ 2023
The Protection of Children from Sexual Offence Act, 2012

INTRODUCTION
Child sexual abuse is usually defined as molestation or sexual abuse in which an adult or an adolescent
uses a child for his/her own sexual stimulation and pleasure. Child sexual abuse can be committed in
different forms which include any kind of sexual activity with a child (whether with force or by another
form of persuasion), any kind of exposure of genitals, nipples, male or female reproductive parts or to
make use of a child in the production of child pornography. Any form of incest behaviour or sexual
exploitation even by a family member is covered under the definition of sexual abuse. It can happen in a
varied setting in school, at home wherever the child is in a vulnerable position or the where the child
labor is common. The global rate of child sexual abuse prevalent in all strata of society has been
estimated at 19.7% for females and 7.9% for males.

In India, Maharashtra in spite of being one of the most developed states is amongst the top three states
which have recorded the highest no. of child rapes between 2011 to 2014. The problem of this sort is a
global one and is experienced both in developing as well as developed countries. On 14th November
2012 the Government of India (GOI) passed the Protection of Children from Sexual Offences (POCSO)
Act with an objective to protect the children from offences of sexual assault, sexual harassment, and
pornography and provide for establishment of special courts for trial of such offences and matter
concerned therewith or incidental thereto. The act takes serious cognizance of sexual offences concerning
the children below 18 years of age.

BACKGROUND
Before 2012, only sexual offences against children were perceived by the law which was secured by three
sections of Indian Penal Code, i.e. sexual intercourse without assent—376 unspecified acts—354,
Homosexuality/brutishness/homosexuality-section 377 Sexual assault is one which is committed without
the consent of the other party. Subsequently, Government of India passed a special law called as
“Protection of children from sexual offences” (POCSO- 2012). The mentioned act criminalizes sexual
assault, sexual harassment, and pornography involving a child less than 18 years of age. Laboratory of
forensic science plays a critical role in cases where Child Sexual abuse has to be analyzed deeply under
POCSO Act. The act also works at safeguarding the child‟s interests at each stage of the legal process by
inculcating child-friendly mechanisms for all purposes including reporting, recording of evidence,
investigation and speedy trial through special courts. The act also makes provision for medical
examination in presence of the parent or any other person whom the child trusts and in case of a female
child by a female doctor. Thus, the whole act in its sense will provide utmost protection to the child with
the due legal process being carried out and justice being delivered.

ANALYSIS
Features
 Section 2(1)(a) of the Act defines “child” as any person below the age of eighteen years. Thus, it is
the only law that lays down provisions governing sexual abuse of male children.
 It is first of its own kind which criminalizes not only watching porn but also collecting pornographic
content under Sec. 15 of the Act. Further, it specifies the punishment for a term which may extend to
three years or fine or both.

1
 The Investigating officer ought to get child medically examined in the nearest government or local
hospital within the time period of 24 hours. However, while the statement of the girl child is being
recorded;
 It shall be recorded in front of women police, not below the rank of sub-inspector.
 Presence of parents and other relatives must be ensured during the process of medical
examination.
 Child Welfare Committee is to be informed within the time frame of 24 hours.
 Section 19 of the POCSO act provides a shield to any person informing about the commission of an
offence. Under section 19(7) no person shall incur any liability, whether civil or criminal, for giving
the information in good faith for the purpose of sub-section Section 2(d), Protection of Children from
Sexual Offences (POCSO) Act, 2012.
 Chapter VI of the POCSO Act lays down the procedures for recording statement of the child. Section
24-26 intends to ensure child-friendly procedure for collecting evidence, reporting, investigation and
processing trial. It provides for following;
No detention shall be made during the night.
Ensuring privacy of the child by protecting its identity from media.
Frequent breaks during the trial as and when needed shall be provided.
Child should not be called repeatedly to testify
 Under section 28 of Chapter VII, the act recommends the establishment of special courts. Further, u/s
29, 31 and 32 mentions presumptions of certain offences, how proceeding is to be carried out before
a special court and special public prosecutors.
 Section 35(2) compels the special courts to complete the trial, as far as possible, within a period of 1
year from the date of offences.
 This Act facilitates the assistance of an interpreter while recording evidence of a child. Also, under
section 38(2) if a child is differently abled he is to be provided with a special educator or a person
who is familiar with the manner of communication.
 Chapter IX of the said Act deals with the miscellaneous provisions wherein section 40 guarantees the
child right to take the assistance of legal practitioner. Further, this chapter specifies alternate
punishment and provisions pertaining to the implementation of Act and public awareness.
 The act defines penetrative sexual assault, aggravated penetrative sexual assault, aggravated sexual
assault, and sexual harassment along with its punishment.
 POCSO Act Punishment
 The following table contains the sections that come under the POCSO Act 2012 by which the
accused is punished by the law:

Legal Analysis
Pre -POCSO
Sakshi vs. Union of India 2004 (5) SCC 518.
A public interest litigation petition was filed by an NGO named „Sakshi‟ expressing concern over the
increase in sexual violence against women and children. They contended the abuse of children in a
manner other than the penile/ vaginal penetration. It is often by means of penile/anal penetration,
penile/oral penetration, finger/vaginal penetration or object/ vaginal penetration and accordingly
demanded not only effective implementation of section 354,375/376 and 377 but also to widen the scope
of term „rape‟. The petition was dismissed by the apex court. However, the Supreme Court laid down
several guidelines popularly known as „Sakshi guidelines‟ wherein the court ordered (a) arrangement of
such screen where witness does not get to see the body or face of accused, (b)the questions put in cross-
examination on behalf of accused, if they are directly related to the incident must be given in writing to
the presiding officer first who may scrutinize the same, (c) allotment of breaks as and when required by
the victim during the testimony.

Bachpan Bachao Andolan v UOI (2011) 5 SCC 1

In 2006, a public interest litigation was filed to address the serious violations of child rights. The petition
majorly focused on discouraging the trafficking of children from various circuses which was increasing
at a gradual rate. The petitioners demanded appropriate implementation of the provisions of the Juvenile
Justice (Care and Protection of Children) Act, 2000 and certain offences such as regular sexual
2
harassment and abuses to be made cognizable under the Indian Penal Code, 1860. Accordingly, the court
directed the central government to issue suitable notifications prohibiting the same. Also, the court
directed formulation of certain schemes governing rehabilitation.

Post-POCSO
Nishu v Commissioner of Police Delhi and Ors. 2014 (85) ACC 962
In the aforementioned case, the petition was filed by a minor girl who was repeatedly raped and
kidnapped by a gang. One of the accused was a police constable in Haryana against whom the petitioner
failed to present any medical reports or a copy of FIR under Indian Penal Code, 1860 or any other
provision of POCSO as a result of which the Supreme Court refused to adjudicate upon the dispute.
Similarly, in the case of Apna Ghar Rohtak Shelter Home (2012) in May 2012, where over 100 inmates
were allegedly subjected to sexual abuse, the POCSO provisions have reportedly still not been invoked
against the accused.

Avinash v. State of Karnataka 2006(1) SCC (Cri) 316

The above mentioned case is an apt example of negligence on the part of police officers and the
investigating agencies which further contributed to the vulnerability of the victim. An appeal was filed by
an accused who not only kidnapped the victim but also had several sexual intercourses with her.
However, in spite of commission of such a heinous crime on his part the court refused to proceed with
the documents and evidence presented had numerous loopholes.

State of Rajasthan and Ors v. Prahald and Or (2000) 9 SCC 241

In the aforementioned case, the appeal was filed by the state for obtaining confirmation of capital
punishment announced by the lower court. This was a case wherein a complaint was filed against the
accused under section 302 of the Indian Penal Code, 1860 and Sections 3 and 4 of the POCSO Act, 2012
alleging murder and harassment. The case was labeled as „rarest of the rare‟ and court confirmed the
death sentence.

Jnanedar Nath Das v. State.- The accused was convicted under section 10 of the POCSO Act. An appeal
was filed against labeling the accused perpetrator criminal. The court taking into account the authenticity
of the witness and consistency of her testimony held the prior judgment to base upon a fair appraisal.
Thus, it upheld the sentence and dismissed the appeal.

Bijoy v. The State of West Bengal (2017)

In this case, the accused was convicted of committing sexual assault and the Calcutta High Court laid
down some directives which are to be followed by the investigating agencies to protect the dignity of the
child victim. Following are some of the important directions:
 The police officer has to register the FIR as per Section 19 of the POCSO Act. Also, they have to
inform the victim and their parents about their right to legal aid and representation.
 After the registration of the FIR, the child should be immediately sent for medical examination under
Section 27 of the POCSO Act. In case the child falls within the definition of „child in need of care
and protection; as defined under Section 2(d) of the Juvenile Justice (Care and Protection of
Children) Act, 2000, the child is to be forwarded to jurisdictional CWC.
 The identity of the victim is not to be disclosed in any media.

Further, the Court issued some guidelines regarding the compensation to the victims. Some important
points are as follows:
 Compensation under Section 33(8) of the POCSO Act can be awarded by the Special Court at the
interim stage.
 The compensation at the interim stage is independent of compensation to be paid by the convict upon
conviction.
 The objective behind providing compensation is the relief and rehabilitation of the child victim and
the reparation to the victim when the State has failed to protect the individual from crimes.

3
Vishnu Kumar v. State of Chhattisgarh (2017)
The Chhattisgarh High Court observed that Section 36 of the POCSO Act was not complied with in its
letter and spirit while deciding the appeal of the accused. Therefore, some guidelines were issued by the
Court to all the judicial officers of the state:
 The Presiding Officer must make the child witness as comfortable as possible. Along with the in-
camera proceedings, the Presiding Officer should come down from the dais and engage in
conversation with the child. He/ she can also offer toys and sweets to the child witness as the child
must not feel that he/ she is in a majestic place.
 The strict rules of evidence can be ignored in order to search for the truth as justice should prevail.
 The Court should ensure the child‟s safety and the statement of the child can be recorded after 3-4
hours or the next day if necessary as the prime motive should be to make the child comfortable and
record the statements free of any influence.
 A child normally tells the truth but as they are dependent beings so their statements might get
influenced by other people so it is the rule of prudence and caution that the statements of a child are
to be scrutinized carefully.

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

This case throws light upon the intricacies of the medical evidence of the victim. The Allahabad High
Court in this case set aside the conviction of the accused under Sections 3 and 4 of the POCSO Act as
there were no marks of injury on the body of the victim who was 14 years of old but the victim had stated
that there was forcible sexual intercourse. The Court made the following observations in this case:
 The injuries on the body are not always sine qua non for proving the offence of sexual assault but if
the victim states that she has been helplessly raped then the marks of injury on the thighs, breasts,
face, wrists or any other part of the body can immensely support her statements.
 The Courts should always take into consideration the fact that false charges of rape or sexual assault
are common and the parents in order to take revenge convince their minor daughters to tell lies and
concoct stories.

Sunderlal v. The State of M.P. and Ors. (2017)

This is an important judicial pronouncement where the father of the minor rape victim filed a petition
under Article 226 of the Constitution of India, 1950 to get permission to terminate her pregnancy.
The Madhya Pradesh High Court paid emphasis on the report according to which the length of the
pregnancy was 20 weeks. Following directives were issued by the High Court in this regard:
 In the case of a minor, the consent of the petitioner is enough for the termination of pregnancy and it
is not essential to obtain the consent of the minor victim.
 The right to termination of pregnancy flows from Article 21 of the Indian Constitution.
 A committee constituted of 3 registered medical practitioners has to form an opinion regarding the
termination of pregnancy in accordance with the Medical Termination of Pregnancy Act, 1971.
 If the Committee gives permission to terminate the pregnancy, then all the services and assistance are
to be provided to the victim by the Respondent i.e. State.
 In case of termination of the pregnancy, the DNA sample of the foetus is to be kept in a sealed cover
in accordance with the procedure.

LOOPHOLES
Although the Act holds good and renders an ample number of advantages, however, it will be wrong to
label it as a masterpiece legislation which is free from any sought of lacunae. The loopholes present in
the Act often turns out to be advantageous for the offenders and ill towards the society. The Act inherits
within itself several loopholes. To mention a few;
1. Even a gesture of mere touch, pat, brush on any part of the body is cardinally brought under the term
„Sexual Penetration‟ under section 376 of Indian Penal Code. Similarly, under POCSO bare touching
is considered equitable to sexual penetration. Thus, this essentially implies that if in lieu of the
custom prevalent in the society a mere touch is made by any male elderly person or for that matter
anyone for the sole purpose of rendering blessing/ cajoles or convince touches a child it would lead
the concerned person to serve sentence in jail.

4
2. The analysis of the provisions contained in the POCSO Act plainly reflects the biases it holds
towards the victims. The act not only facilitates unfair advantage to the concerned victim but also
undignifies the principles of natural justice by failing to act in accordance with the justice, equity and
good conscience.
3. It has been observed that often there arise cases wherein although the child is an adult with the age of
22-23 years, however, he or she possesses mental instability say, for instance, an adult is declared to
be of age four mentally by the clinical psychologists. Thus, in such a situation it becomes really
difficult for the advocates to bring the concerned act under the provisions of POCSO Act. The act is
silent on such an integral issue which leads to denial of remedy and the justice to many victims
making them eligible for the societal torture.
4. The provisions contained in POCSO are pretty much parallel or simultaneous with once which are
already a part of existing laws in the society except for the few. In such a situation adamant of an act
like POCSO renders the sentence of accused entirely in the hands of biased legislation thereby
denying an individual access to his fundamental and constitutional right by which he can defend
himself.
5. Apart from taking cognizance of the trivial touch, it renders the existent relations in the society at
stake. Say, for instance, if a father out of love for his daughter pats on his daughters back it might
lead to putting innocent father straight behind the bars since mere pat on his daughters back amounts
to forceful penetration under the POCSO Act.
6. The people are often seen taking advantage of the act to degrade the position of an individual or his
family in the society. The Act opens the room for manipulation and misuse by the victims and the
other person for succeeding in their inappropriate motives. Say for instance if a girl is below 18 years
of age and is immature she might possibly get influenced by someone and complaint against the
concerned accused thereby taking erroneous advantage of the legal remedy available to her. Thus,
this opens the room for manipulation and misuse.
7. People are ignorant about the existence of such an act which renders protections to the children from
all forms of sexual abuse. There exists lack of awareness amidst the people or the society which is to
to be governed by the act. No steps have yet been taken even after the 5 years of commencement of
this act by any administrative bodies to raise awareness relating to the same.
8. The act incorporates ample amount of punishments and penalties behind which the intention of the
legislature might have been to impart a deterrent effect. However, to the contrary in practice, the
proceedings under the act more often results in the acquittal of the accused depriving the victim of
the remedy or her rights and opening the doors for criticism from the society.
9. This act further curtails the personal liberty of the individuals who are below the age of 18 years by
criminalizing even the consensual sex between two adolescent or the children below the age of 18
years. It not only leads to violations of the personal liberty guaranteed to them by the Constitution of
India[9] but also, makes them a victim of societal harassment.
10. The act opposes the child marriage and consummation of the child during the same. However, it will
not be wrong to contend that though it is prohibited under the secular law. The practice of child
marriage does find a valid mention in the personal laws governing the society thereby complicating
the issues or complaint received and rendering its authenticity objectionable.

RECOMMENDATIONS
An act might contain several loopholes which makes it inconsistent with certain aspects of the society as
well as the legal system, however, a defect can always be cured by abiding with guidelines and amending
the errors prevalent. Some of the recommendations go as under;
1. As mentioned by Justice Verma committee, “there is an urgent need to audit the performance of all
institutions of governance and law and order”.
2. Provisions governing the issue pertaining to situations wherein the child or the adolescent denies to
undertake medical examination must be laid down. Often situation arises where on one hand the child
denies any sought of medical examination and on the other, his or her family insists on the same. In
such a situation it becomes very difficult for the authorities to complete the essentials of the
procedure. Thus, a specification must be laid down leaving no scope for ambiguity.
3. While POCSO Act mandates the medical examination of the female child to be conducted by the
female professional there exists certain provisions under criminal law say for instance in the Criminal

5
 Law Amendment Act,[10] Section 166A Protection of Children from Sexual Offences(POCSO) Act,
2012. which essentially provides for examination of the concerned victim without any failure by the
medical officer present. Hence, this existing ambiguity must be canceled out by rendering
explanations or formulating amendments.
4. The act provides the victims with the free medical care and imposes a legal obligation upon the
authorities to abide by the same. Thus, a provision imposing a legal obligation upon the concerned
authorities or the state must be inserted ordering them to provide appropriate reimbursement or
financial aid to the victims who belong from economically unstable or unsound strata of the society
for the expenditure incurred by them to avail medical aid.
5. The Act shall be amended with respect to legalizing the consensual sexual intercourse between two
adolescents. This step would contribute to depleting the level of societal harassment towards the
victims and in the termination of pregnancies.
6. Training of all the authorities indulged in the process of rendering justice and care is highly
recommended considering the sensitivity of the crime, mental stability of the victim at the given
point of time and the societal pressure. Special emphasize is needed to be rendered in this regard on
the medical professionals and the police authorities indulged in the process in order to facilitate
child-friendly witnessing and statements, structured assessment and healthy and accessible medical
aid.
7. POCSO Act calls for mandatory reporting which often leads the family to face social stigma and
suffer embarrassment coupled with frustration. A sense of leniency can be adopted in such a situation
in order to safeguard the punishment of those who are being prosecuted for the mere reason of not
informing the concerned or the respective authorities. Also, the mandate of reporting opens the room
for unreasonable or fraudulent complaint by the individuals to attain revenge of their personal fights.
Individuals often try to obtain an unfair advantage or abuse the power by filing false complaints.
8. It is not per se essential to impose exceptionally rigid punishments and fine in order to ensure
effective implementation and create a deterrent effect. Certain provisions must be amended which are
too firm in nature and renders the accuse to suffer odious imprisonment.
9. Since the very adamant of POCSO Act a lot of questions have been raised pertaining to the manner
of dealing with the situation where although the victim is an adult, the medical evidence produced
pertaining to his or her mental stability states otherwise. This issue has always created a huge hue.
The act is silent on such situations. Thus, this issue ought to be dealt with urgently so as to enable the
advocates to bring such cases under the ambit of the POCSO Act and help clients obtain justice.

Although the POCSO Act has dealt adequately with almost all the sexual abuses, the act further needs to
widen its scope by including penile-vaginal penetration.

Punishment for offences covered in the POCSO Act, 2012

Punishment for the above offences is specified in the table:
Name of the offence Relevant Punishment
provision of the
POCSO Act
Penetrative sexual assault on a Section 4 Minimum imprisonment of 10 years which
child of 16 to 18 years of age may extend to imprisonment for life plus fine
Penetrative sexual assault on a Section 4 Minimum imprisonment of 20 years which
child below 16 years of age may extend to imprisonment for the remainder
of natural life plus fine
Aggravated penetrative sexual Section 6 Minimum rigorous imprisonment of 20 years
assault which may extend to imprisonment for the
remainder of natural life plus fine or death
Sexual assault Section 8 Imprisonment of 3 to 5 years plus fine
Aggravated sexual assault Section 10 Imprisonment of 5 to 7 years plus fine
Sexual harassment Section 12 Imprisonment which can extend upto 3 years
plus a fine.
Use of a child for pornography Section 14(1) First conviction- imprisonment extending up to

6
 5 years second or further convictions-
imprisonment extending up to 7 years plus fine
Use of a child for pornography Section 14(2) Minimum imprisonment of 10 years extending
while committing an offence up to imprisonment for life plus fine
under Section 3
Use of a child for pornography Section 14(3) Rigorous imprisonment for life plus fine
while committing an offence
under Section 5
Use of a child for pornographic Section 14(4) Imprisonment of 6 to 8 years plus fine
purposes while committing an
offence under Section 7
Use of a child for pornographic Section 14(5) Imprisonment of 8 to 10 years plus fine
purposes while committing an
offence under Section 9.
Offence of storing pornographic Section 15 Imprisonment extending upto 3 years or fine or
material involving a child for both
commercial purposes

General principles of the POCSO Act, 2012

There are a few principles which are to be followed while the conduct of the trial under the POCSO Act.
These are as follows:
 Right to be treated with dignity- Various provisions under the POCSO Act reflect that it is very
crucial to treat a child with dignity and utmost compassion
 Right to life and survival- Right to life is a fundamental right provided by Article 21 of the Indian
Constitution. It is essential that a child should be protected from the evils of society and could be
brought up in a secure environment.
 Right against discrimination- This is also a crucial fundamental right and an additional duty under
the Indian Constitution. A child should not be discriminated against on the basis of sex, religion,
culture, etc and the investigative and court procedures should be just and fair.
 Right to preventive measures- Children being immature in their growing stages, should be well
trained so that they become capable of preventing abuses against them thereby differentiating
between what is right and what is wrong.
 Right to be informed- A child should be informed of the legal procedures that are being carried out
for the conviction of the accused.
 Right to privacy- The main objective behind provisions like Section 23 is to protect the right to
privacy of a child against whom any offence under the POCSO Act has been committed so as to
maintain the confidentiality of the proceedings for the best interests of the child victim.

Abetment of child sexual abuse

Section 16 of the POCSO Act defines the abetment of the offence. The following acts constitute abetment
of offence under the POCSO Act:
 Instigating any person to commit that offence;
 Engaging in any conspiracy with one or more persons to commit any offence when any illegal act or
omission takes place in consequence of that conspiracy;
 Aiding to commit that offence intentionally.

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

Attempt to child sexual abuse

Section 18 enunciates that attempt to commit any offence under the POCSO Act, 2012 is also an offence
inviting either of the two following punishments:
 Imprisonment provided for that offence for a term extending upto one-half of the imprisonment for
life, with or without fine;
7
 Imprisonment provided for that offence for a term extending upto one-half of the longest term of
imprisonment with or without fine.

Trial of offences under the POCSO Act, 2012

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

Deposition of the victim

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

Furthermore, in the case of Nar Bahadur Subba v. State of Sikkim (2017), in the appeal before the
Sikkim High Court, the Court observed that in the trial court deposition, the teachers of the victim have
stated, „It is true that I am not well acquainted with the character of the victim‟. To this, the Court noted
that gauging the character of an 11-year-old girl is of no question and the cross-examination has violated
provisions of Section 33 of the POCSO Act.

The time limit for disposal of cases

Section 35 of the POCSO Act stipulates the following timelines:
 For recording the evidence of the child: 30 days from the date of taking cognizance of the offence,
 For completing the trial: 1 year from the date of taking cognizance of the offence.

In the case of Shubham Vilas Tayade v. The State of Maharashtra (2018), the Special Court allowed
the prosecution for recording evidence after 30 days of taking cognizance. This order was challenged by
the accused, being violative of Section 35 of the POCSO Act. However, the high court agreed with the
counterargument of the APP that as the accused did not challenge the application of the prosecution so he
cannot challenge the order. Furthermore, it was observed that even otherwise, the Special Court can
record evidence after 30 days and the only rider provided by Section 35 is that the reasons for the delay
have to be recorded.

Medical and forensic evidence

Child sexual abuse is rarely diagnosed merely on the basis of physical examination. In many instances,
the scars or bruises on the body of the victim are not found either because the cases are not immediately
reported or the sexual abuse does not result in such injuries.

In the case of Pintu v. State of U.P. (2020), the conviction of the accused under Section 377 of the Indian
Penal Code, 1860 and Section 6 of the POCSO Act were set aside and one of the reasons was that there
was no mark of external injury around the anus of the victim and the Allahabad High Court opined that in
case of a sexual assault on a boy of 7 years old by a person aged 23 years, there should have been some
kind of external injury.

In the case of State (NCT of Delhi) v. Anil (2016), the Trial Court and the Delhi High Court acquitted the
accused from the charges under POCSO Act due to the following points:
 The victim refused her internal medical examination when she was brought to the hospital.
 The medical reports reflected that her menstrual cycle was regular and hence, her claim that she had
gotten pregnant due to a physical relationship with the accused had failed. Moreover, no proof of
hospitalization was provided to her.
 There were no injuries on her body.

8
Admissibility of the medical history of the victim
The medical history of the victim is not given much importance by the Indian judiciary. In the case
of Gangadhar Sethy v. State of Orissa (2015), the doctor did not find any injury marks on the body of
the victim but stated that based on her medical history, here is the possibility of an attempt to sexual
assault cannot be ruled out. On the other hand, the Orissa High Court paid no emphasis on the medical
history and held that one cannot interpret what the victim meant by the term „assault‟. It cannot be
extended to imply that she was talking about penetrative sexual assault. Moreover, the medical or other
evidence did not justify such a conclusion.

Duties of a medical examiner

It is essential that the medical examination of a child is conducted with utmost care and precaution. Rule
5(3) of the POCSO Rules, 2012 makes the provision that no medical facility or practitioner who renders
emergency medical care to a child should ask for any kind of legal or other documentation before
providing such care. Apart from this, Section 27 of the POCSO Act lays down certain laws regarding the
conduct of medical examinations. These are as follows:
 The medical examination has to be conducted in accordance with Section 164A of the Criminal
Procedure Code, 1973.
 A medical examination of a girl is to be conducted by a woman practitioner.
 It should be conducted in the presence of a person in whom the child has trust, for example, his/ her
parents, otherwise in the presence of a woman nominated by the head of the medical institution.

Jurisdiction of the POCSO Act, 2012

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

In the case of M. Kanna v. State (2018), there were discrepancies in the professional duty of the defence
counsel who violated the right to a fair trial of the accused. The Madras High Court after making note of
this fact remanded the case back to the trial court to provide the opportunity to the accused to cross-
examine the witness. Also, the case was transferred from the trial court in which it was pending as it was
presided over by the same judge.

The burden of proof under the POCSO Act, 2012

The objective behind the legislation is to ensure that the actual offenders are behind the bars. One
approach that has been inoculated in the POCSO Act is to reduce the burden on the prosecution to prove
certain things by introducing presumptions. Section 29 and 30 of the POCSO Act lay down the provision
with respect to the burden of proof.

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

In Imran Shamim Khan v. State of Maharashtra (2019), a child told her grandmother that she was
sexually abused and her medical examination confirmed this. However, her mother told her to ignore it.
The statements of the child victim and her grandmother were recorded before the magistrate. The
Bombay High Court made an important observation in this case by stating that, “even if a minor in a
sexual assault case turns hostile under the POCSO Act, the onus is on the accused to establish the
innocence. It is easy to say that the prosecution failed to prove the guilt of the accused. But in a case like
this, the judicial approach has to see justice is imparted to the victim too”.

9
Further Section 30 provides the opportunity to the accused to prove his/ her innocence thereby making
the presumption under Section 29 rebuttable. In the case of S. Suresh v. State of Tamil Nadu (2017), the
accused was convicted under Section 6 of the POCSO Act and he had not rebutted the presumption of
Section 29. Therefore, the Court observed that the rebuttable presumption also proves the guilt of the
accused.

Shortcomings of the POCSO Act, 2012

There are various loopholes in the procedure and implementation of the laws specified under the POCSO
Act. Following are some criticisms:
 Problem with the application of the last seen theory: The last seen theory can lead to wrongful
conviction in several cases and therefore, it cannot be applied without circumstantial evidence. It was
held by the Supreme Court in the case of Anjan Kumar Sarma v. State of Assam (2017), that the last
seen theory is a weak piece of evidence and cannot be relied upon single-handedly.
 Unprepared investigation machinery: The investigation machinery in the child sexual abuse cases
is not well acquainted with the procedure which leads to a faulty investigation. For instance, in the
case of the Addl. Sessions Judge, Hoingoli and Ors. v. Bhawat and Ors. (2017), the High Court of
Bombay acquitted the alleged accused as the frock of the victim which was in the custody of police
was unsealed and therefore, the semen stains on the frock could not be relied upon for the
conviction.
 Silent on consensual sexual activities: In case of sexual intercourse with consent, one of which is
minor, the partner who is not minor can be prosecuted under the POCSO Act as the consent of a
minor is not considered relevant under this Act.
 False complaints by children are not punishable: Section 22 of the POCSO Act provides for the
punishment to the persons who file a false complaint in order to humiliate, extort, threaten or defame
another person. However, a child is exempted from any such punishment which is a loophole as
many people take advantage of this exemption and misuse this provision.
 Pending cases: Although, the POCSO Act specifies that “the Special Court shall complete the trial,
as far as possible, within a period of one year from the date of taking cognizance of the
offence” under Section 35(2) but the number of pending cases is rising which is creating a huge
problem in making the justice mechanism effective.
 Two-finger test violates privacy and dignity: Two-finger test is administered on the victims of
sexual assault while conducting their medical examination. If the vagina of a girl is capable of
allowing two fingers to move freely then it is inferred that the victim has been subjected to repeated
sexual intercourse. This test is conducted on the minor girls against whom any offence under the
POCSO Act is committed. Although the government banned this test in the year 2012, it is still
administered. In the case of Lillu @ Rajesh and another v. State of Haryana (2013), it was observed
that the administration of two-finger tests breaches the right to privacy, dignity and mental integrity
of a woman and hence it is unconstitutional.

Conclusion
The POCSO Act, 2012 is exhaustive legislation which aims at covering all the aspects of child sexual
abuse. Amendment has been made in the Act via the Protection of Children from Sexual Offences
(Amendment) Act, 2019, with which the punishments for the offenecs have been made more stringent.
The need of the hour is to sensitize the public regarding child sexual abuse so that there is no reluctance
in reporting these crimes. Moreover, the investigating agencies should be well trained and professionals
such as medical practitioners involved in the stages of investigation and trial should be efficient so as to
leave any scope of negligence on their part. The POCSO Act already makes the procedure child friendly
and this approach should be followed by the judicial officers, magistrates, and police officers so that the
child victims could repose trust in them.

10