Oral Sex With 10 Years-Old Minor Not Aggravated Sexual Assault But Penetrative Sexual Assault

Coverage of this Article

KEY TAKEAWAYS

-Oral sex with minor not aggravated sexual assault: Allahabad High Court

INTRODUCTION

-Under the Indian Constitution, protection of children from all forms of exploitation including sexual offences is the primary responsibility of the state. In order to fulfil its obligation, the Government has drafted several laws and statutes providing stringent punishments for sexual offences against children.Sexual abuse subjects children to both physical as well as mental trauma and hinders their growth. The trauma of sexual abuse stays with the children throughout their lives and it is the duty of the state to ensure that no child has to go through such a trauma.

POCSO ACT

-The Protection of Children from Sexual Offences Act, 2012(hereafter POCSO Act) is a special legislation which was enacted with the intention of protecting children and minors from sexual abuse and pornography.

OTHER PROVISIONS

-Besides POCSO, there are several provisions in Indian Penal Code, 1860 which can be invoked in the cases of sexual offences against children.Section 375 provides punishment from the offense of rape, Section 354 provides punishment for the offence of outraging the modesty of a women and Section 377 provides punishment for unnatural sex. However, these Sections are considered inadequate in some cases as Section 375 does not include offences against males within its domain while Section 354 and 377 do not contain comprehensive definitions of “modesty” and “unnatural sex” respectively.

RECENT JUDGMENT

-In a recent judgment in the case of Sonu Kushwaha v. State of Uttar Pradesh, the Allahabad High Court, while reducing the sentence of a person convicted under Sections 377 and 506 of Indian Penal Code, 1860 and Section 6 of POCSO Act, held that oral sex with a minor is not aggravated sexual assault but penetrative sexual assault.

JUDICIAL OBSERVATIONS RELATING TO POCSO ACT

-The Protection of Children from Sexual Offences(Amendment) Act, 2019 has enhanced the minimum punishments for both aggravated sexual assault under Section 6 and penetrative sexual assault under Section 4.

CONCLUSION

-The intention behind the POCSO Act was to punish the offenders of sexual offences against children with the stringent of punishments. The 2019 Amendment to the Act was also made with this intention.

KEY TAKEAWAYS

• Oral sex with minor not aggravated sexual assault: Allahabad High Court
• The intention of the legislation must be kept in mind while interpreting the provisions of a statute and a provision must be interpreted with the four walls of the Act.
• Section 5(m) of the POCSO Act provides that “whoever commits penetrative sexual assault on a child below twelve year” would be held to have committed aggravated sexual assault.
• The 2019 Amendment to the POCSO Act not applicable retrospectively.

INTRODUCTION

Under the Indian Constitution, protection of children from all forms of exploitation including sexual offences is the primary responsibility of the state. In order to fulfil its obligation, the Government has drafted several laws and statutes providing stringent punishments for sexual offences against children.Sexual abuse subjects children to both physical as well as mental trauma and hinders their growth. The trauma of sexual abuse stays with the children throughout their lives and it is the duty of the state to ensure that no child has to go through such a trauma.

POCSO ACT

The Protection of Children from Sexual Offences Act, 2012(hereafter POCSO Act) is a special legislation which was enacted with the intention of protecting children and minors from sexual abuse and pornography. The POCSO Act has been drafted in accordance with Article 15(3) of the Constitution which permits the State to frame special laws for the protection of the rights of women and children. The Preamble of the Act states that "it is imperative that the law operates in a manner that the best interest and well- being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child". The Preamble itself makes it clear that the primary objective of the Act is the protection and well-being of the children.

The Act took note of the public abhorrence to the offenses of sexual abuse against children. Prior to this Act, there was no adequate central legislation which dealt expressly with sexual offences against children. The few statutes which existed were considered to be inadequate and ineffective in protect the children from sexual offences.

The POCSO Act stipulates a child friendly procedure to be followed throughout the investigation. This is in line with India's international obligations as it is a signatory to the United Nations Convention on Rights of Children. The Act prescribes that the identity of the child must be protected and throughout the proceedings, special care must be taken to ensure that the child does not feel unsafe or uncomfortable. The Act provides that where a child is in need of medical care, free medical aid must be provided to him either in the government or private hospital, wherever necessary.

The POCSO Act also provides that the police officers would be obliged to act as the protectors of the children and would therefore make proper arrangements for the security, care and welfare of the child. When the police officers are informed of a child abuse case, they have to inform the Child Welfare Committee within 24 hours.

The Special Courts are empowered to determine the adequate amount of compensation which may be required for the rehabilitation of the child.

The POCSO Act is a comprehensive statute covering all forms of sexual abuse against children. It defines a child to be person below 18 years of age. The Act stipulates setting up of Special Courts for hearing the cases filed under this Act. This provision is aimed at providing speedy justice to the victims. Furthermore, where a complaint is lodged under this Act, the Court would assume that the accused is guilty and the burden to prove the innocence is upon the accused. Section 29 of the Act creates a statutory presumption of guilt against the accused in cases of committing, attempting or abetting offences under Section 3 (penetrative sexual assault), 5 (aggravated penetrative sexual assault), 7 (sexual assault) and 9 (aggravated sexual assault) of the Act. Furthermore, under Section 30, if any offence under this Act requires a culpable mindset, then the Courts shall presume that the accused person had such a mind set and the burden to prove this presumption wrong shall be on the accused. Where no rebuttals or counter arguments are provided by the accused, the statutory presumption under Section 30 will be taken into account by the Court.

Rajya Sabha’s standing committee on Human Resource Development had stated in its 240th report that such a statutory presumption against the accused person is essential in light of the low conviction rates in the cases of child abuse. The Report had further stated that such statutory presumptions are already present in other statutes such as Section 113A and 114 of the Indian Evidence Act. The two reasons stated for creating such a provision were difficulty in gathering evidence and the vulnerability of the victims.

Furthermore, Section 17 of the Act provides that abetment of child abuse will also be a punishable offense under this Act and Section 18 provides the punishment for the same.

The Act also takes note of the possibility that a child may not be aware of what is happening to him/her and hence it places the onus on the adults to file a complaint whenever they come to know of any sexual offence committed against the child. Media persons, hospital staff, persons employed in photography industry, etc., all are mandated under Section 20 to report instances of child abuse to the appropriate authorities. If the adult does not file a complaint despite being aware of an instance of sexual abuse against a child, then legal action against such an adult can be taken.

OTHER PROVISIONS

Besides POCSO, there are several provisions in Indian Penal Code, 1860 which can be invoked in the cases of sexual offences against children.Section 375 provides punishment from the offense of rape, Section 354 provides punishment for the offence of outraging the modesty of a women and Section 377 provides punishment for unnatural sex. However, these Sections are considered inadequate in some cases as Section 375 does not include offences against males within its domain while Section 354 and 377 do not contain comprehensive definitions of “modesty” and “unnatural sex” respectively.

The need for the enactment of POCSO Act was felt because the existing laws did not cover all forms of child abuse and the crimes against children were on a rise. The existing provisions did not provide adequate penalization in relation to the nature of the crime.

RECENT JUDGMENT

In a recent judgment in the case of Sonu Kushwaha v. State of Uttar Pradesh, the Allahabad High Court, while reducing the sentence of a person convicted under Sections 377 and 506 of Indian Penal Code, 1860 and Section 6 of POCSO Act, held that oral sex with a minor is not aggravated sexual assault but penetrative sexual assault.

The Court was hearing an appeal against the order of the Special Sessions Court, where the Sessions Judge had convicted a person under the POCSO Act for committing oral sex with a 10 year-old minor boy. The Sessions Court had sentenced the convicted person to 10 years of rigorous imprisonment and had also imposed a fine of Rs. 5000. In this case, the appellant had committed oral sex with a 10 yeas-old minor after giving him Rs 20 and when the minor informed the complainant’s nephew about the incident, a complaint was lodged against the appellant.

The Court held that the instance case does not fall under the category of aggravated sexual assault and hence the offender is not punishable under Section 5, 6 or 9(M) of the POCSO Act. Oral sex falls under the category of penetrative sex and hence is punishable under Section 4 of the POCSO Act. Furthermore, the Court observed – “Pentrative sexual assault being lesser offence from aggravated pentrative sexual assault is legally permissible to convict the appellant therein.” On these grounds, the Court reduced the sentence of the offender to 7 years of rigorous imprisonment while retaining the fine. With reference to Section 3(a) of the POCSO Act, the Court’s observation that oral sex comes under the category of penetrative sexual assault seems correct. However, it is pertinent to note that Section 5(m) of the POCSO Act provides that “whoever commits penetrative sexual assault on a child below twelve year” would be held to have committed aggravated sexual assault. Thus, in the instant case, even if the offence amounted to penetrative sexual assault, since the child was 10 years old, the offender must have been punished under Section 6.

In the case of State of Maharashtra, Through Police Station Officer v. Gopal 2020 SCC OnLineBom 4339, the Court held that “All the sexual assaults on children below 12 years amount to aggravated form of sexual assault”.

The National Commission for the Protection of Child Rights has requested the Chief Secretary of Uttar Pradesh to file an appeal against the judgment. The Commission has the obligation to monitor the implementation of the POCSO Act and the Juvenile Justice Act under Section 44 and Section 109 of the POCSO Act and Juvenile Justice Act, 2015 respectively.

JUDICIAL OBSERVATIONS RELATING TO POCSO ACT

The Protection of Children from Sexual Offences(Amendment) Act, 2019 has enhanced the minimum punishments for both aggravated sexual assault under Section 6 and penetrative sexual assault under Section 4. After the 2019 Amendment, the minimum punishment for penetrative sexual assault is 10 years and minimum punishment for aggravated sexual assault is 20 years. Furthermore, the 2019 Amendment also provided that persons convicted under Section 6 may be punished with death penalty. The Courts must take note of the intention of the legislation behind these amendments while deciding the adequate punishment for the convicted person. In the case of Ravi v. the State of Maharashtra 2019 SCC OnLine SC 1288, the Court observed “we cannot forget the legislative intent which resulted in amendments to POCSO”. In the case of Dhananjoy Chatterjee @ Dhana v. State of West Bengal 1994 (2) SCC 220, the Court rightly remarked that the Courts “should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime”.

However, this amendment cannot be applied retrospectively to an offence committed before the date of amendment. The Supreme Court in the case of State of Telangana v. Polepaka Praveen @ Pawan observed that the 2019 Amendment is to operate prospectively and hence death penalty under Section 6 cannot be provided retrospectively.

In the case of Satish Ragde v. State of Maharashtra, the Bombay High Court had held that skin to skin contact along with sexual intent is necessary to constitute sexual assault under the POCSO Act. The Court had therefore acquitted the offender under Section 8 of POCSO Act and punished him under Sections 354 and 342 of Indian Penal Code, 1860.

This judgment was set aside by the Supreme Court. The Apex Court held that "sexual intent" is the necessary element to constitute sexual assault and "not skin-to-skin" contact. The Court further stated that "intention of the legislature can't be given effect to unless wider interpretation is given". The Supreme Court further stated that "while interpreting a statute, the courts should strive to ascertain the intention of the Legislature enacting it". The Court also placed its reliance on certain foreign cases such as Regina v. H (2005) 1 WLR 2005, where the Court had held that touching the clothes would also amount to touching under Section 3 of the Sexual Offences Act, 2003 (applicable in United Kingdom) and State of Iowa V. Walter James Phipps 442 N.W.2d.611, where the Court had held that skin to skin contact is not essential to constitute sexual activity.

In the case of J.P. Bansal v. State of Rajasthan &Anr. Reported in AIR (2003) SC 1405, the Court held that while interpreting a statute, the Court must lay special emphasis on the principle of sententialegis or mens and while interpreting a provision, "construction which requires, for its support, addition or substitution of words or which results in rejection of words, has to be avoided". The essence of a law lies in the spirit in which it was drafted and the purpose which it was to serve. The Courts must interpret the statute in accordance with the legislative spirit.

In the case of Balaram Kumawatv. Union of India &Ors. (2003) 7 SCC 628, the Supreme Court rightly pointed that while interpreting a statute, the rule of “ex visceribus actus", that is, interpretation within the 4 walls of the statute, must be followed. The Courts must, while interpreting a particular provision, compare the provision with other provisions of the Act and consider the statute as a whole to determine the legislative intent. Furthermore, the Court observed that pedantic and lexical construction of a statute is not always necessary and even if the language used is inexactitude, the Court must reject any such interpretation or construction which would defeat the intention of the legislation.

In the case of Navin Dhaniram Baraiye v. the State of Maharashtra 2018 Cri LJ 3393, the Court, while dealing with the statutory presumption provided under Section 29 of the POCSO Act stated that no presumption is un-rebuttable. The Court stated that the presumption under Section 29 is not absolute and it “would come into operation only when the prosecution is first able to establish facts that would form the foundation for the presumption under Section 29 of the POCSO Act to operate”.Even where the presumption is raised, the accused has thee option of rebutting it through cross examination or by adducing contradictory evidence.

CONCLUSION

The intention behind the POCSO Act was to punish the offenders of sexual offences against children with the stringent of punishments. The 2019 Amendment to the Act was also made with this intention. The Government aims at eliminating the social evil of abuse of children by deterring criminals through the harshest of punishments. The Courts must take note of this intention while deciding appropriate punishment for offenders.

Several offences of child abuse go unreported due to lack of awareness and societal pressure. Hence, it becomes essential to ensure that where the offences are reported, adequate punishment is provided to the offenders. This would not only build the trust of the people in the judiciary but also act as a deterrent to such heinous crimes.

The purpose of adopting a child friendly approach and making the legislature, executive and judiciary as collaborators in the protection of child victims was to encourage more victims to report such offenses. However, unless the offenders are adequately penalized, the purpose of the legislation will not be fulfilled.

The State must also take measures such as installation of CCTV cameras, provide free self defense training to children, etc for preventing the cases of child abuse. Awareness campaigns must be undertaken for informing the people about the available legal remedies.