Strengthening POCSO cases with law and practice

There has been a steady and alarming increase in the rate of child sexual abuse in India. A study conducted by the Delhi Commission for Protection of Child Rights established that 53% of children faced one or more forms of sexual abuse. Most victims were street children, children at work or in institutional care. Though the number of sexual assault cases among children is increasing, the conviction rate is very low due to various reasons like insufficient evidence, relatives being involved, delay in filing of complaints, etc.

The law to prevent such crimes – Prevention of Children from Sexual Offences Act, 2012 (POCSO) has failed to convict or deter offenders on many counts. In a report, 509 recent POCSO judgments were analysed to observe that the alleged victims turned hostile in 78% cases and testified against the accused in only 14.5% cases.” POCSO has also faced criticism for making the process of filing an FIR and leading evidence in a POCSO trial difficult for the victim.

The need to strengthen POCSO gained momentum after the Kathua rape case, where an 8 year old girl was abducted, raped and murdered in Jammu and Kashmir, early this year. The Central government was under pressure to act in light of two of its Ministers been caught in support of the perpetrator of the crime. As similar cases of sexual offenses against minors started coming to light, a huge furore was raised by media and the general public to revamp the existing criminal laws in the country for better protection of minors. This led to the passing the amendment to the Criminal Laws called the Criminal Law (Amendment) Ordinance, 2018 which introduces changes to Indian Penal Code, 1860 (IPC), Criminal Procedure Code, 1973 (CrPC), Evidence Act, 1872 and POCSO Act, 2012. The amendments aim to make trials speedier and increase the punishment for sexual assault on girls below the age of 16.

Highlights of the Amendment Act

How to strengthen POCSO cases to increase the conviction rate

One of the reasons for low conviction rate under POCSO is the lack of awareness among the police and the Judiciary in dealing with the victim, registering the FIR, filing the chargesheet, and leading the evidence. Often, in POCSO cases, the victim and witness turn hostile because they are related to or know the accused.

Our collaborator, Ms. Manjushree, a Human Rights lawyer with extensive experience in POCSO cases, opines that, “Even though there are stringent laws, the onus lies on the Judiciary with regard to a speedy trial and granting of bail which are the two major hurdles for conviction in POCSO related cases. There is also a need for stricter training and guidelines to the Judiciary with regard to the seriousness of the case in hand and the implementation of the laws.”

Here are few tips that advocates handling cases of sexual crime against children, should keep in mind to strengthen the conviction rate –

1. During FIR and Chargesheet
   1. Convince the police to add the Sections of rape under the IPC as per the new amendment which makes the distinction in punishment based on the age of the victim.
   2. The victims should be protected from accused as well as their families in cases of incest or involvement of relatives. In such cases, police should be requested to keep the victim under the protection of a social worker.
   3. Section 301 of CrPC grants special permission to assist the Prosecutor on behalf of the victim or complainant and also helps to get the prosecutor and the police to actively discharge their duties.
   4. Since all POCSO cases have been made cognizable and non-bailable, advocates should assert this to lower the chances of the accused absconding, which could lead to the victim turning hostile.
   5. The name and image of the child victim should, at all times, be protected from media, as per Section 23 of POCSO.
2. During evidence
   1. Request for child’s evidence to be recorded within 30 days of the act, as per Section 35 of POCSO.
   2. Request for in-camera proceeding of the trial, as per Section 37 of POCSO.
   3. When the child deposes, someone they trust should be next to them, as per Section 26 of POCSO. Ms. Manjushree suggests the advocates to also take reference from Rule 4(8) of POCSO Rules, 2012 which states that such person should maintain confidentiality and explain the judicial proceedings and its possible outcomes to the child and its family.
   4. Stop defence attorney from asking leading and mentally incriminating questions to the victim.
      • The questions to the witness can be asked only through the Judge as per Section 33(2) of POCSO. Our collaborator opines that the Supreme Court’s judgment in Sakshi v. Union of India, AIR 2004 SC 3566 further strengthens the law laid down in Section 33(2) of POCSO.
      • As per the new amendment to Section 146(3) of the Indian Evidence Act, 1871, it is prohibited to question the sexual history of the rape victim.
      • As per the new amendment to Section 155(4) of the Indian Evidence Act, 1871, the defence attorney is not permitted to argue that the victim was of immoral character.
   5. Ask for a speedy trial as per the newly amended Section 173 of CrPC.
   6. Section 22(2) of the POCSO excludes children from being punished for providing false information.
   7. Apply for the case to be moved to special court as per Section 28 of POCSO.

Implementing the new law and sensitisation

The intention of passing POCSO was to provide a special law for children who are victims of sexual crimes, independent of the existing criminal laws of the country applicable to adult sexual victims. When this special law failed to protect victims and increase the conviction rate, the Legislation introduced the new amendment to POCSO and other criminal laws with the aim to give the law more teeth to prosecute offenders and act as a deterrent.

Apart from the amendment to POCSO, the governments of Rajasthan, Madhya Pradesh, Jammu and Kashmir and few other states have also introduced higher punishments and in many cases death penalty for cases of child rape. While the laws are been strengthened, one has to wait and see if their implementation is successful.

In addition to the law, it is important for the police and Judiciary to sensitise themselves on handling child victims and ensuring smooth prosecution of such cases. It is vital for advocates working on such cases to be aware of all the new developments highlighted in this article, so they can guide all stakeholders to use the laws as they were intended by the Legislation and ensure speedy and just trials to protect the little and defenseless victims.

DISCLAIMER: The information provided in this article is for educational purposes only. The same cannot be construed as legal advice.