Establishment of 'penetrative act' under section 3 of POCSO

Establishment of 'Penetrative Act' Under Section 3 of POCSO

BY - ANUSHA AGARWAL

BACKGROUND:

Delhi high court reiterated the position of law on the reliability of evidence given by child witness is wild upholding a conviction for child rape.

A single bench of justice Hari Shankar also explain the threshold to establish penetrative act under section 3 of POCSO and went on to comment upon the character of crimes of such nature.

It was said by Mahatma Gandhi that - "An Eye for an Eye will make the whole world is blind".

Now the time has come to adopt the reformative theory of punishment because the criminal is not criminal by birth but rather situation made them.

REASON FOR ENACTMENT OF POCSO ACT, 2012

The very inadequacy of Indian penal code and absence of any legislation for effectively addressing and tackling crime such as sexual exploitation and sexual abuse of children give birth to the commencement of POCSO act as the very intention of government establishments was to protect the children from offences adequate legal machinery by establishing special quotes for trial of such offences and matters incidental connected with child sexual abuse crimes.

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INTRODUCTION:

The protection of children from sexual offense act of 2012 was established to protect the child against offenses. It was formed to provide a child-friendly and safe system for trial Beneath which the perpetrator should be punished. This act defines a child as any person below 18 years of age. It also makes provision for avoiding the re-victimization of the child and the hands of the judicial system.

Section 3 of this act, explains penetrative sexual assault elaborating in detail if any person inserts anything in the private part of a child or ask him or her to do so then it's a crime.

Section 4 of the POCSO act explains punishment for penetrative sexual assault- whosoever comments penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but may extend to imprisonment for life.

ISSUE:

In the present case the appellant had enticed the prosecutrix from the custody of her mother on the pretext of buying clothes for her and had taken her, with him, to a house where he had repeatedly raped her, also threatening to eliminate her, was she to disclose the incident to anyone.

The counsel for the appellant-accused had a give that since the MLC report mentions only slight tearing of the hymen it can be termed a penetrative sexual act under section 3 POCSO act.

The court relied upon the Supreme Court judgment in Ranjit Hazarika vs the State of Assam

Holds that injury or rupturing of the Hemant are not necessary Kaun competition to the commission of penetrating sexual assault.

Comment upon the character of crimes of such nature -:

1. There is no absolute principle to the effect that the evidence of child witness cannot inspire confidence.

2. Section 118 of the Indian Evidence Act 1872 discounts the campaign tents of the person of the tenderer to testify only where there are prevented from understanding the question put to them all from given rational answers to those questions on account of their age.

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CONCLUSIONS:

The court upheld the conviction under section 363, 366, 376(2) and 506 of the Indian penal code and section  6 of the POCSO Act.

The appellant-accused is sentenced to 10 years of rigorous imprisonment at a total fine of rupees 18000. The victim is also granted a compensation amounting to rupees 500000.