The present deals with the offence of sexual assault committed against a child under section 6 of the Protection Of Children from Sexual Offences (POCSO) Act.
DATE: 11th March, 2021
JUDGES: Rekha N Pandhare
SUBJECT: The present deals with the offence of sexual assault committed against a child under section 6 of the Protection Of Children from Sexual Offences (POCSO) Act. The question before the court was whether the accused couple was guilty of the said offences or not
- In the present case, the Special POCSO Court at Mumbai is hearing a complaint filed by the parents of the girl child who was 4 years old at the time of the incident, against an elderly couple for the offence of sexual abuse under the POCSO Act.
- The incident dates back to September 4th, 2013. After returning back from school, she went to the 4th floor of the building in the noon to play with her friend. Her friend was sleeping so she decided to return back to her house.
- It was alleged by the complaint that while returning to home, dada-dadi (the accused couple) called her and took her into their house. They made her sit on the swing and then the old man slapped her. While all this was happening, the old lady held her tight so that she cannot leave.
- Further, the child in her statement told the police that dada disrobed her and inserted his fingers into her private parts. Also, when she tried to run, the man spat on her before they let her go.
- The victim child’s mother told that when she went to put her daughter to bed at night, she said that she wanted to tell her something if she won’t be scolded. After assurance she informed her mother about the incident. Her mother then checked the child’s private parts and found inflammation.
- The parents after this lodged a complaint after which the couple was arrested.
- Section 6- Punishment for aggravated penetrative sexual assault-
(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim
- The key issue before the court in the present case was whether the burden of proof lies on the accused or not?
ANALYSIS OF THE JUDGEMENT
- On behalf of the accused couple it was contended that the prosecution had failed to examine independent witnesses and had not proved the alleged offence against the accused. It was further contended that the said allegations are not true and just the result of personal enmity which had triggered the child’s father to file this complaint.
- While arguing against the said contention, Public Prosecutor Vidya Sakle had stated that it is very well established that in criminal proceedings, it is the prosecution who has to provide evidence against the accused to prove a case. However, in the present circumstances the offence was committed against a 4 year old child. Thus, for the offences committed under POCSO Act, the burden of proof lies on the accused to prove their innocence.
- Further, it was argued that the testimony of the victim is given prime importance under POCSO Act unless and until its credibility is proved otherwise.
- The child her 2013 statement has clearly stated that dadi held her while dada slapped her and inserted finger in her private parts. The girl’s testimony was recorded 4 years after the filing of complaint.
- Relying on her testimony the court held that the couple was of the child’s grandparents’ age, lived in the same building, was supposed to take care of her but instead abused her. Thus, the couple out on bail, was sentenced under section 6 of POCSO Act which prescribes punishment for offence of aggravated penetrative sexual assault against a child.
- The couple was sentenced for imprisonment for a term of 10 years and also imposed fine of Rs. 50,000 to be paid by each as compensation to the girl.
- The judgement of the Court worthy of appreciation, however, it is to be noted, that the testimony of the girls was taken 4years after the filing of complaint. The court while deciding the case has placed reliance on testimony of the victim and no other material evidence. Keeping these things in mind, it is to be observed that it took more than 7 years to decide the case which is quite a long period of time.
- No evidences were produced by the accused couple to prove their innocence. Even if the testimony was recorded 4 years later, almost 3 years were spent by the court to decide the matter.
- Therefore, although the matter was decided in favour of the victim, it is a matter of concern that dispensation of justice sometimes takes unnecessarily long period of time India which affects the life of the parties involved in many ways.