JIBBY KATTAKAYAM IN THE HINDU
A Sessions court here has expressed concern that the Delhi Police are not registering cases of sexual exploitation of children under the Protection of Children from Sexual Offences Act, 2012 (POCSO), nor conducting their investigations in line with the requirements laid down in the legislation.
Interestingly, the court also applied the recently notified POCSO (November 2012) in a case that took place prior to it coming into force, while deciding on the contentious “age of consent” issue in a case where two men repeatedly gang-raped a minor girl leading to her getting pregnant.
Though the prosecution claimed that the girl was only 13 years old, medical examination revealed that her age was between 16 and 17 when the offence was committed last January.
The then defence counsel argued that the girl was a consenting party and the case would normally be governed by the sixth clause of Section 375 of the Indian Penal Code which makes consent of the girl immaterial only if she is under 16.
But Additional Sessions Judge Kamini Lau ruled that Section 2(d) of the POCSO, which has defined a “child” as any person below 18, would hold in this case on the ground that the interests of the victim in this case was better served by POCSO and that Section 42 of the POCSO envisages that when two laws (POCSO 2(d) and IPC375 in this case) dealt with the same offence, then the law ensuring stiffer punishment, in this case POCSO 2(d), would hold.
Ms. Lau said: “Hence taking a cue from the legislative intent as provided in the Charter of the Special Act (POCSO) which is to protect all persons below 18 years as contemplated in POSCO, I hold that the prosecutrix ‘P’ is a child, being a person below 18 years, and her consent if any becomes immaterial (as a child is not capable of giving any consent).”
The judge also directed that her order be placed before the Delhi Police Commissioner to bring to his notice the failure to comply with the provisions of the new Act.
“It has become necessary for me to bring on record that it is necessary to ensure that in cases relating to sexual exploitation of children (persons below the age of 18 years) registered after the coming into force of the POCSO, which is a beneficial child rights legislation,” she said.
Place copy before
“In fact,” ASJ Lau added, “it is the provisions of this special Act which are required to be necessarily invoked by the investigating agency and the investigations/trial of the said cases have to be conducted in the manner as provided therein under the Act which I am informed is unfortunately not happening in many of the cases recently registered. In view of the above, the copy of this order/judgment is directed to be placed before the Commissioner of Police, Delhi, for appropriate action.”
The court sentenced the convict responsible for the pregnancy, Vicky Singh, to life imprisonment and the other convict Lucky Singh, who was the owner of the factory at Bawana in which the girl’s father was employed as a watchman, to 10 years’ rigorous imprisonment. The girl testified before the court that her mother was in ill-health and she was repeatedly raped by the convicts when her parents visited the hospital. The court also fined the two men Rs.1 lakh each, which is to be given to the baby born to the victim.
The question of consent
In the consent issue, the court also cited Section114A of the Indian Evidence Act which stipulates that when sexual intercourse is proved, the court should presume that the girl did not give her consent if in her testimony the victim states that she had not consented. The judge noted that in the present case the victim was “unfailing and consistent” in saying she had not consented and was coerced by threats to her life.
The court also slammed attempts to label the girl as a “promiscuous” woman. “There cannot be a double standard as to how men and women are to be judged for promiscuity…Under the given circumstances when their (convicts were married) own character being under a cloud, they cannot be permitted to raise issues regarding promiscuity of another whom they have shamelessly exploited over a period of time,” the court said.
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