POCSO Act: All India High Courts Digest

2022

1. POCSO Act Not Intended For Teenagers' Romantic Affair: Allahabad HC

Case title - Atul Mishra v. State Of U.P. And 3 Others

Case citation: 2022 LiveLaw (AB) 51

The High Court recently granted bail to a POCSO Accused who ran away with a 14-
year-old girl (victim) due to a romantic affair between them. The Court noted that
both of them fled away, got married in a Temple, and remained in company with
each other for almost two years during which the girl even gave birth to a baby.

The Bench of Justice Rahul Chaturvedi also remarked that it would be extremely
harsh and inhuman to devoid the baby from parental love and affection on account
of the fact that both the accused and minor victim loved each other and decided to
get married.

The Court, in a significant clarification also said that the scheme of the POCSO
Act clearly shows that it did not intend to bring within its scope or limits, the cases
of the nature where the adolescents or teenagers are involved in a dense romantic
affair.

2. Competency Certificate Of Child Witness Not Mandatory If It Understands

Court's Questions & Answers Rationally: Allahabad HC In POCSO Case

Case Title: Amrita Nand @ Tribhuvan Arjariya @ Baba v. State of U.P. and Another.

Citation: 2022 LiveLaw (AB) 122

The Allahabad High Court held that the Competency Certificate of a child witness is
not mandatory if the child gives rational answers to the court's questions and his
testimony is unshaken, inspires confidence of the Court.
"Nowhere it is provided that certificate regarding the competency of the child witness
is mandatory. If it is recorded, it is so far so good. But, if the court has put the
question to understand his intellect to understand the question and if he replied the
rational answer and thereafter his examination was recorded without recording the
certificate regarding the competency of the witness and he was thereafter cross
examined by counsel for the accused and had replied satisfactorily and given
rational answer, therefore, in above circumstances not appending the certificate by
the trial judge regarding the competency of the witness is of no consequence and it
will not make his statement inadmissible," Justice Mohd. Aslam observed.

3. Depth Of Penetration Is Immaterial In Offence Of Rape: Allahabad High

Court Denies Bail To POCSO Accused

Case title - Chndra Prakash Sharma v. State Of U.P And Another

Case Citation: 2022 LiveLaw (All) 172

Stressing that the depth of penetration is immaterial in an offence of rape, the High
Court denied bail to a man who committed rape on an 8-year-old girl. The Bench of
Justice Sanjay Kumar Singh further observed that little girls are worshipped in our
country, but the cases of pedophilia are increasing.

The Court also said that a victim/female small child who experiences sexual abuse
once in her life, tend to be more vulnerable to abuse in adult life, and in such cases,
the healing is slow and systematic.

4. Can't Presume That 8 Yr Old Victim Made Allegations Of Oral Sex Under
Parents' Influence: Allahabad HC Denies Bail To POCSO Accused

Case title - Govind v. State of U.P

Case Citation: 2022 LiveLaw (All) 173

The High Court denied bail to a man who has been accused of committing oral sex
with a 8 year old girl as it noted that mere long detention in jail does not entitle an
accused for bail.
The Bench of Justice Rajesh Singh Chauhan further noted that the
victim/prosecutrix was about 8 years at the time of incident, and therefore, the Court
said, at the stage of bail, it cannot be presumed that she gave the statement about
oral sex under the influence of her parents.

5. Appoint Lady Counsels To Represent Sexual Violence Victims, Especially

Minor Girls: Allahabad High Court To HC Legal Services Committee

Case title - Ashish Yadav v. State Of U.P And Another [CRIMINAL MISC. BAIL
APPLICATION No. - 23834 of 2022]

Case Citation: 2022 LiveLaw (AB) 395

The Allahabad High Court has requested the High Court Legal Services Committee
Allahabad to appoint lady counsels to represent the victims especially when the
victims are minor girls.

The bench of Justice Ajay Bhanot was essentially dealing with the bail plea of a
POCSO Accused when it noted that very few lady counsels appear to represent the
victims from the side of the High Court Legal Services Committee.

"The High Court Legal Services Committee, High Court Allahabad has been
empanelled counsels to represent the victims. However, it is noticed that very few
lady counsels have appeared for the victims. In such circumstances, the High Court
Legal Services Committee, High Court Allahabad is requested to appoint lady
counsels to represent the victims especially when the victims are minor girls," the
Court said.

6. Allahabad High Court Grants Bail To Accused As Parents Of 8 Y/O Sexual

Assault Victim Refuse To Get Her Medically Examined

Case title - Manoj Saxena v. State of U.P. and Another [CRIMINAL MISC. BAIL
APPLICATION No. - 27038 of 2022]

Case Citation: 2022 LiveLaw (AB) 429

The Allahabad High Court granted bail to an accused booked for committing
an Aggravated Sexual Assault (punishable under Section 10 of the POCSO Act)
upon a 8 year old girl as her parents refused to get her medically examined.

The bench of Justice Sadhna Rani (Thakur) granted bail to accused Manoj Saxena
taking into account the larger mandate of Article 21 of the Constitution of India and
the Apex Court's dictum in the case of Dataram Singh v. State of U.P. and another
(2018) 2 SCC 22

7. "If Husband/Accused Is Convicted Then Victim/Wife's Future Would Be

Ruined" : Allahabad High Court Quashes POCSO Case

Case title - Rajiv Kumar v. State Of U.P. And 2 Others [APPLICATION 482 No. -
4392 of 2016]

Case Citation: 2022 LiveLaw (AB) 442

The Allahabad High Court quashed an FIR and criminal proceedings in a POCSO
case registered against a man as it noted that the accused man and victim-wife (who
was a minor at the time of the incident) married the applicant/accused out of her
own sweet will and is living a happy married life with him.

"To punish the offenders for a crime, involved in the present case, is in the interest
of society, but, at the same time, the husband is taking care of his wife and in case,
the husband is convicted and sentenced for societal interest, then, the wife will be
in great trouble and their future would be ruined. It is also in the interest of society
to settle and resettle the family for their welfare," the bench of Justice Manju Rani
Chauhan observed as it quashed the rape-POCSO case against the accused.

8. Allahabad High Court Denies Bail To POCSO Accused Who Married Minor,
Established Physical Relation With Her 'Consent'

Case title - Praveen Kashyap v. State Of U.P. And 3 Others [CRIMINAL MISC. BAIL
APPLICATION No. - 36810 of 2022]

Case Citation: 2022 LiveLaw (AB) 464

The Allahabad High Court denied bail to a man accused of raping a minor girl (16-
17 years old) after marrying her with her consent as the Court noted that the consent
of the minor is no consent at all.

The bench of Justice Sadhna Rani (Thakur) opined that even if the minor she left
her home, solemnized marriage, and had physical relations with the applicant with
her consent, her consent, being consent of the minor, cannot be said to be of any
significance.

9. Allahabad High Court Grants Bail To POCSO Accused On Condition Of

Marrying Victim, Accepting Their Child As His Daughter

Case title - Monu v. State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others
[CRIMINAL MISC. BAIL APPLICATION No. - 10567 of 2022]

Case Citation: 2022 LiveLaw (AB) 465

The Allahabad High Court granted bail to a POCSO accused booked for raping a
minor girl (17 years old) with whom he allegedly eloped, on the condition that he
would marry her within a period of one month and shall give all rights to her and his
child as wife and daughter.

While granting him bail, the Bench of Justice Dinesh Kumar Singh took into
consideration the stand of the prosecutrix and her father who stated that they had
no objection if the accused is released on bail. The Court also noted the fact that
the Girl had already delivered a child from the accused applicant.

10. POCSO Act | 13 Y/O Boy's Assertion That Accused Did 'Gandi Harkat' Is
Sufficient To Issue Process U/S 204 CrPC: Allahabad HC

Case title - Arti Devi v. State of U.P. and Another [APPLICATION U/S 482 No. -
9242 of 2022]

Case Citation: 2022 LiveLaw (AB) 483

The Allahabad High Court has observed that the statement of the 13-year-old boy
that the applicant has committed an act being 'Gandi Harkat' (loosely translated as
Dirty Act) would be prima facie sufficient ground to summon the accused (a lady in
this case) as per Section 204 CrPC.

The bench of Justice Saurabh Shyam Shamshery further clarified that such an act,
if the commission of the same is proved in the trial, could amount to an offence
under Sections 7 and 8 of the POCSO Act as even touching a private part of a child
with sexual intent may fall under 'sexual assault' under Section 7 of POCSO Act.

11. Child Born Out Of POCSO Crime A "Victim" As Defined Under Section
2(wa) CrPC: Bombay High Court

Case Title: Ramesh Tukaram Vavekar v. State of Maharashtra & Anr.

Citation: 2022 LiveLaw (Bom) 55

Reducing the life sentence awarded to a rape convict to 10 years, the Bombay High
Court directed him to pay compensation to the child born out of his illicit acts
observing that the baby was also "victim" as contemplated under Section 2(wa) of
the CrPC.

The victim had not only been abandoned by the appellant but also by her real
mother(PW 1). They did not stop there but had put the life of the newly born child
into jeopardy by sending him in an Orphanage. In view of Section 2(w a) of the Code
of Criminal Procedure, the "victim" means a person who has suffered any loss or
injury caused by reason of the act or omission for which the accused person has
been charged and expression "victim" includes his or her guardian or legal heir. The
child born to the victim is indeed her legal heir and also a victim in view of the
definition of "victim" and therefore, he must be adequately compensated for as it
was the appellant who is responsible for bringing him in this world and then
abandoning him at the mercy of an Orphanage.

12. Delay In POCSO Cases Benefits Accused, Minor Victim May Forget
Incident With Passage Of Time: Bombay HC Issues Directions For Expeditious
Trial

Case Title: Atul Gorakhnath Ambale Versus The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 155

The Bombay High Court observed that delay in trials in cases of sexual abuse often
lead to re-victimization and ignominy, as the trial process itself makes the victim re-
live the horrific experience and in cases of small children, due to their vulnerability,
it may lead to further trauma.

Single judge Revati Mohite Dere said,"this Court has come across several cases,
where the child/victim's evidence is not recorded for years and hence, it would be
appropriate to issue some directions to the trial Courts conducting cases under the
Protection of Children from Sexual Offences Act ('POCSO')."

13. Kissing & Fondling Not Unnatural Offence U/S 377 IPC: Bombay High
Court Grants Bail To POCSO Accused

Case Title: Prem Rajendra Prasad Dubey vs The State of Maharashtra

Citation : 2022 LiveLaw(Bom) 190

The Bombay high Court observed that kissing and touching private parts are prima
facie not unnatural offences under Section 377 of the Indian Penal Code, therefore
it granted bail to a man accused of a minor boy's sexual assault.

Regarding offences under sections 8 and 12 of the POCSO Act with maximum
punishment of five years, the bench observed that the applicant is in custody for
almost one year, the charge is not yet framed and trial is not likely to commence in
the immediate future.

14. Bombay High Court Quashes Sexual Assault FIR Under POCSO Act As
Victim (Now A Major) & Accused To Marry

Case Title – Nauman Suleman Khan v State of Maharashtra & anr

Citation : 2022 LiveLaw (Bom) 200

The Bombay High court quashed an FIR under Protection of Children from Sexual
Offences Act (POCSO Act) for penetrative sexual assault, as the victim girl (now a
major) said that she and the accused were allegedly in love and are now to be
married.
The court observed it was "inclined to accept the request for quashing the FIR, only
by considering their future. If the prosecution still remains, it will come in their
peaceful life."

15. Touching Child's Private Parts With Sexual Intent Sufficient To Attract
POCSO Act, Absence Of Injury Not Relevant: Bombay High Court

Case Title: Ramchandra Shrimant Bhandare v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 307

Bombay High Court held that touching the private parts of a child with sexual intent
is enough for it to be construed as sexual assault under section 7 of the POCSO Act
and a medical certificate demonstrating an injury is not mandatory.

Justice Sarang Kotwal held, "The absence of injury mentioned in the medical
certificate will not make any difference to her case because the very nature of the
offence of sexual assault defined under Section 7 of the POCSO Act mentions that
even touching private part with sexual intent is sufficient to attract the provisions of
Section 7 read with Section 8 of the POCSO Act."

16. Half of Life Imprisonment Is 10 Years for POCSO Offences: Bombay High
Court

Case Title: Suresh @ Pintya Kashinath Kamble v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 352

The Bombay High Court sentenced a convict to one half of life imprisonment under
the POCSO Act, who will have to undergo a sentence of 10-years.

Justice Sarang Kotwal held that since life imprisonment was not defined under the
POCSO Act, the definition of life imprisonment under section 57 of the Indian Penal
Code would apply.

The section provides that for calculating a fraction or part of an entire sentence, life
imprisonment would be equivalent to imprisonment for twenty years.
"Thus, half of life imprisonment in such cases would mean imprisonment for ten
years," Justice Kotwal observed while disposing off the petition.

17. 'Directions May Be Passed On Administrative Side': Bombay High Court

On PIL For Timely Recording Of POCSO Victim's Testimony

Case Title: Rashmi Taylor v. State of Maharashtra & Ors.

Citation: 2022 LiveLaw (Bom) 367

The Bombay High Court directed a public interest litigant seeking proper
enforcement of POCSO Act, to approach the High Court Committee on POCSO
matters, with his suggestions.

The petition sought directions to the Special Courts to ensure that the testimony of
the minor victim is recorded within one month, as per Section 35(1) of the POCSO
Act. The ad-hoc committee overseeing POCSO matters comprises of Justice Revati
Mohite Dere, Justice A. S. Gadkari and Justice Bharati Dangre.

The petition challenged non-compliance of Section 35 of the POCSO Act read with
section 309 of CrPC and the directions of Supreme Court in Alakh Alok Shrivastava
v. Union of India. The PIL also sought a direction to all Special POCSO Courts for a
time bound conclusion of cases.

18. Though Minor, She Understood Consequences Of Her Act & Voluntarily
Accompanied Him: Bombay High Court While Granting Bail To POCSO
Accused

Case Title: Faizan Wahid Baig v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 452

The Bombay High Court granted bail to a man accused of raping a minor girl
observing that the two were in a relationship and the girl, though minor, understood
the consequences of her act. The girl was 15 years and 4 months old while the
accused was about 21 years old at the time of the alleged incident.
"In a case like this, where she voluntarily joined the company of the applicant, and
she had categorically admitted that she was in love with the applicant, whether that
she consented for the sexual intercourse or not, is the matter of evidence," Justice
Bharati Dangre stated in her order.

19. Bombay High Court Reduces Sentence of POCSO Convict Citing Good
Behaviour In Jail; Upholds Conviction Due To DNA And Medical Evidence

Case Title: Vilas Shantaram Kaldhone v. State of Maharashtra & Anr.

Citation: 2022 LiveLaw (Bom) 474

Justice Sarang V. Kotwal, while dealing with an appeal against POCSO conviction,
observed that the appellant, as a convict and as an undertrial prisoner prior to that,
had already been in jail for longer than the minimum sentence under section 4 of
the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) at the time
of the offence and his conduct in the jail is satisfactory.

The court upheld the conviction observing that the DNA report is one of the most
incriminating pieces of evidence and cannot be overlooked.

20. 'Not Unmindful Of Social Stigma Attached To Nature Of The Offence':

Calcutta HC Condones Delay In Lodging FIR In POCSO Case Of Man Raping
14 Yr Old

Case Title: Md. Israil v. The State of West Bengal

Citation: 2022 LiveLaw (Cal) 23

The Calcutta High Court observed that there is existing social stigma associated
with the offence of rape and accordingly held that a delay in lodging FIR in cases of
such nature would not vitiate the prosecution case. The Court accordingly upheld
the conviction of a man for raping a minor victim aged 14 years who had
subsequently given birth to a still born child. A Bench comprising Justices Joymalya
Bagchi and Bivas Pattnayak observed that it is apparent that the victim did not inform
anyone about the crime due to continuous threats by the appellant and that she had
proceeded to lodge the police complaint only after her pregnancy was discovered.
"I am also not unmindful of social stigma attached to the nature of the offence which
might have also attributed to the delay in lodging FIR. Even otherwise, the mere
factum of delay in filing complaint in regard to an offence of this nature by itself would
not be fatal so as to vitiate the prosecution case", the Court underscored. Further
the Court observed that there is no evidence of concoction of a false version or
embellishment and accordingly dismissed contentions pertaining to the delay
lodging of an FIR.

21. Lacunae In Prosecution Case Due To Patent Contradictions Cannot Be

Cured By Resorting To Statutory Presumption U/S 29 POCSO Act: Calcutta
HC

Case Title: Ganesh Orang v. State of West Bengal & Anr

Case Citation: 2022 LiveLaw (Cal) 33

The Calcutta High Court observed that lacunae in the prosecution case due to patent
contradictions or inherent improbabilities cannot be cured by resorting to statutory
presumption under Section 29 of the Protection of Children from Sexual Offences
Act, 2012 (POCSO Act). A Bench comprising Justices Joymalya Bagchi and Bivas
Pattanayak observed, "Glaring lacunae in the prosecution case undermines the
credibility of the factual foundations which require to be prima facie established to
attract the statutory presumption. When the primary facts relating to time, place and
circumstances constituting the offence are not prima facie established due to patent
contradictions or inherent improbabilities, such lacuane cannot be cured by resorting
to statutory presumptions in law". Accordingly, the Court acquitted the appellant by
observing, "In order to attract the statutory presumption under Section 29 of the
POCSO Act the factual foundations with regard to the ingredients of the offence
under Section 6 of the said Act require to be established in the first place..in the light
of the contradictory and inconsistent versions with regard to the allegation of rape
levelled against the appellant, the factual foundations of the prosecution case has
not been laid on the basis of preponderance of probabilities so as to attract the
statutory presumption and the appellant is therefore entitled to an order of acquittal."

22. 'Penetration Even Of Slightest Degree Is Necessary To Establish Offence

Of Rape': Calcutta HC Modifies Order Of Conviction To 'Attempt To Rape' In
Case Concerning 11 Yr Old Girl

Case Title: Dipak Singha v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 60

The Calcutta High Court observed that penetration even of the slightest degree is
necessary to establish the offence of rape and accordingly held that the appellant
should be convicted for the offence of attempt to rape instead of the offence of rape.
A Bench comprising Justices Bivas Pattanayak and Joymalya Bagchi was
adjudicating upon a case wherein the appellant had been convicted for raping a
victim girl aged around 11 years. The Division Bench observed that the evidence on
record shows that no case of penetration has been deposed either by the victim or
other witnesses and accordingly held, "It is settled law penetration even of the
slightest degree is necessary to establish the offence of rape. An analysis of the
evidence on record shows no case of penetration has been deposed either by the
victim or other witnesses. Although absence of injuries or non-rupture of hymen is
not a sine qua non to prove the offence of rape, in the factual matrix of the case
where the victim herself states that the appellant attempted to rape her absence of
injuries in her private parts corroborate the conclusion that the case was one of
attempt to commit rape."

23. 'Evidence Of Sexual Assault Victim Need Not Be Tested With Same
Amount Of Suspicion As That Of An Accomplice': Calcutta HC Upholds
Conviction In POCSO Case

Case Title: Ram Sevak Lohar v. State

Case Citation: 2022 LiveLaw (Cal) 92

While opining that the sole evidence of a victim of sexual assault is enough to secure
a conviction, the Calcutta High Court observed that the evidence of a victim need
not be tested with the same amount of suspicion as that of an accomplice. A Bench
comprising Justice Shekhar B. Saraf and Justice Kesang Doma Bhutia observed
that the Supreme Court in various decisions have held that barring serious
exceptions, the evidence of victim of sexual assault is enough for conviction. Opining
that the evidence of a victim of sexual assault need not be tested with the same
amount of suspicion as that of an accomplice, the Court underscored, "A girl, who
is the victim of sexual assault, is not an accomplice to the crime but is a victim of
another person's lust and, therefore, her evidence need not be tested with the same
amount of suspicion as that of an accomplice. Maintaining that the sole and trust
worthy evidence of a woman, who is a victim of a sexual offence, is enough to find
her assailant guilty. An accused guilty for committing of offence of rape, the solitary
evidence of the prosecutrix is sufficient, provided the same inspires confidence and
appears to be absolutely trustworthy, unblemished and should be of sterling quality."
The Court further observed that the testimony of a minor sexual assault victim must
be appreciated taking into account the facts and circumstances of the case. It was
also noted that even if the mother of the victim turns hostile. the sole evidence of
the victim if found reliable can be enough to secure a conviction. "..it has been held
rape is not mere physical assault but instead destroys the whole personality of the
victim. The rapist degrades the very soul of the helpless female and therefore, the
testimony of the prosecutrix must be appreciated on the background of the entire
case, even if the mother turns hostile", the Court observed further.

24. 'Immaterial Whether Breasts Of 13 Yr Old Girl Were Developed Or Not':

Calcutta HC Upholds Conviction For Sexual Assault U/S 7 Of POCSO Act

Case Title: Rohit Pal v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 121

The Calcutta High Court held that it is immaterial whether the breasts of a 13 year
old girl are developed or not for the commission of the offence of sexual assault
under Section 7 of the Protection of Children from Sexual Offences Act, 2012
(POCSO Act) as long as it is proved that the accused had touched the specific part
of the body of the girl with sexual intent. During the proceedings, it was alleged on
behalf of the appellant that since the the concerned Medical Officer had deposed
that the breasts of the victim girl was not developed, the question of touching breasts
by the accused did not arise at all. Dismissing such a contention, Justice Bibek
Chaudhuri observed, "In the instant case, the victim girl stated in clear term before
the Learned Magistrate as well as during trial that the accused touched her breasts
and kissed her. It is absolutely immaterial whether breasts of a 13 years old girl were
developed or not. The specific part of the body of a girl of 13 years of age shall be
held and term as breast for the purpose of Section 7 of the POCSO Act even if her
breasts are not developed due to certain medical grounds".

25. 'Redact Names In Pleadings, File Affidavits In Sealed Covers' : Calcutta HC

Issues Directions To Ensure Anonymity Of Victims Of Sexual Offences In
Court Records

Case Title: Prafulla Mura v. The State of West Bengal & Anr
Case Citation: 2022 LiveLaw (Cal) 131

The Calcutta High Court issued practice directions in order to ensure that the identity
of victims of sexual offences including minor victims under the POCSO Act are not
disclosed in the pleadings and other records of the Court. The directions were issued
while adjudicating upon an appeal filed challenging an order of conviction under
Section 6 of the POCSO Act wherein the appellant had arrayed the minor victim as
a respondent describing her by name and also disclosing her father's name. A
Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi observed
that such a disclosure in the petition of appeal runs contrary to the provisions of
Section 33(7) of the POCSO Act as well as Section 228A of the IPC. Opining that
necessary amendments are required to be made to the rules of this Court to avoid
such disclosure of identity of victims, the Court underscored, "In order to avoid illegal
publication of identity and other particulars of victim of offences under sections 376,
376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E of the Indian Penal Code
as well as minor victims in the pleadings and/or documents filed before this Court,
necessary amendments are required to be made to the rules of this Court." Thus,
the Court also ordered the Registrar General to place the matter before the Rule
Committee of the Court for considering the issue of amendments of the rules of the
Court so that the identity of victims of sexual offences including minor victims under
POCSO Act are not disclosed in the pleadings and other records of the Court.

26. Making Victim Naked Proves Culpable Mental State, Touching Private Part
Not Required: Calcutta HC Upholds Conviction For Aggravated Sexual
Assault In POCSO Case

Case Title: Chitta Biswas v. The State of West Bengal & Anr

Case Citation: 2022 LiveLaw (Cal) 172

The Calcutta High Court upheld conviction for the offence of aggravated sexual
assault under Section 10 of the Protection of Children from Sexual Offences Act
(POCSO Act) by opining that surrounding circumstances like the accused making
the minor victim girl naked prove the culpable mental state of the accused. Justice
Bibek Chaudhuri also rejected the argument that since nobody saw the accused
touch the private part of the victim girl, it would not constitute the offence of sexual
assault. "Learned Advocate for the appellant submits that nobody saw the accused
touching private part of the victim and from the evidence of PW3 it is found that the
accused was sitting by the side of the victim girl who was lying on the varanda of
PW3 in naked condition, the accused ought to have been convicted under Section
11 of the POCSO Act for the offence of sexual harassment. I am not in a position to
accept such submission made by the learned Advocate for the appellant because
there was no reason for not to treat the specific acts by the appellant as the acts of
sexual assault within the meaning of Section 7 of the POCSO Act", the Court
observed. Opining that the sexual intent of the victim has been proved beyond any
shadow of doubt, the Court further underscored, "The surrounding circumstances
like the accused having taken the victim to the house of PW3 when she was not
present, pulling down her pant, making her naked amply prove culpable mental state
of the accused and in such a case, the court is entitled to raise statutory presumption
about the culpable mental state of the accused as permitted under Section 30 of the
POCSO Act. The said presumption has not been rebutted by the accused by proving
that he has no such mental state. Therefore, sexual intent of the accused is
established beyond any shadow of doubt."

27. 'Young Person, Was Barely 18 Yrs At Time Of Offence': Calcutta High
Court Commutes Life Sentence Awarded To Convict For Raping 7 Yr Old Girl

Case Title: Rajinder Lohar v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 177

The Calcutta High Court has commuted the sentence of life imprisonment awarded
to a man convicted of raping a 7 year old girl after taking into account that the convict
had no criminal antecedents and that he had already suffered incarceration for about
18 years. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya
Bagchi opined that although in the instant case a minor victim had been raped, the
accused was also a young person who was barely above 18 years of age at the time
of the incident. Commuting the life sentence imposed, the Bench observed,
"Although, the victim was a minor and was forcibly raped, appellant was also a
young person who was barely above 18 years at the time of occurrence. He does
not have criminal antecedents. Keeping in mind the aforesaid facts and as he has
already suffered incarceration for about 18 years, I modify the sentence imposed
upon the appellant and direct that he shall suffer imprisonment for the period already
undergone in place of the maximum sentence of life imprisonment imposed upon
him and pay the fine imposed upon him by the trial Court, in default, shall suffer
rigorous imprisonment for one year."
28. "Non-Rupture Of Minor's Hymen Wouldn't Rule Out Case Of Rape":
Calcutta HC Upholds Conviction In 5 Yr Old Girl's Rape Case

Case title - Azad Ali Saha v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 262

The Calcutta High Court upheld the conviction of a man for raping a 5-year-old girl
by observing that the non-rupture of the hymen of a minor child would not wholly
rule out a case of rape. Taking into account the facts, circumstances of the case,
and the evidence adduced, the Bench of Justice Joymalya Bagchi and Justice
Ananya Bandyopadhyay observed thus: "A combined reading of medico-legal
evidence on record categorically shows injuries on the vulva as well as inner aspect
of thighs of the victim which probabalise a case of rape. Slight penetration is
sufficient to constitute rape. Non-rupture of the hymen as noted by PW 11 is to be
assessed in the light of the aforesaid proposition of law. Hence, non-rupture of the
hymen of a minor child would not wholly ruled out a case of rape."

29. [Sexual Offences] Calcutta HC Issues Slew Of Directions To Special

Courts To Ensure Smooth & Prompt Examination Of Minor Victims

Case title - Soumen Biswas @ Litan Biswas vs State of WB

Case Citation:2022 LiveLaw (Cal) 303

The Calcutta High Court issued a slew of directions to the Special Courts to ensure
a smooth, prompt and seamless examination of the minor victim of sexual offences.
The bench of Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay issued
the directions while rejecting a bail plea filed by POCSO accused as it noted that
the trial Court had failed to act n accordance with the procedure laid down in Section
33 of POCSO Act regarding the manner of examination of the minor victim. Our
readers may note that Section 33 of the POCSO Act provides for a child-friendly
atmosphere for the examination of a minor. It requires that such examination has to
be conducted in presence of her guardian, a friend, or a relative.

30. Delhi High Court Enhances Compensation For Child Sexual Abuse
Survivors From Rs 7 Lakh To 10.5 Lakh
Case Title: X v. STATE OF NCT OF DELHI (ACTING THROUGH ITS SECRETARY)
& ANR.

Citation: 2022 LiveLaw (Del) 996

Ordering increase in the amount of compensation for survivors of child sexual abuse
from Rs 7 lakh to at least Rs 10.5 lakh under the 2018 Delhi Victim Compensation
Scheme, the Delhi High Court said that the final compensation to the victims must
be the maximum amount as provided in the scheme's schedule.

The schedule of 2018 scheme mentions both minimum as well as the upper limit of
compensation to be awarded to victims.

Justice Jasmeet Singh said that special courts will be within their rights to adjudicate
and grant compensation for more than 10.5 lakhs and will also decide the final as
well as the interim compensation to be granted.

31. [POCSO Act] Child Sexual Abuse Increasing Alarmingly, Courts Must
Imbibe Legislative Wisdom: Delhi High Court

Case Title: ABC v. State

Citation: 2022 LiveLaw (Del) 984

Observing that offences against minors, especially sexual assault, are increasing
alarmingly, the Delhi High Court stressed that it is necessary for the courts to "imbibe
the legislative wisdom" behind enactment of the Protection of Children Against
Sexual Offences (POCSO) Act.

Observing that rape is a heinous crime which is abhorrent not only as against the
victim but also against society at large, a division bench of Justice Siddharth Mridul
and Justice Anup J. Bhambhani observed:

"The plight of a victim and the shock suffered can be felt instinctively; as the victim
of rape is left devastated by the traumatic experience, as well as an unforgettable
shame; being haunted by the memory of the horrific experience forcing her into a
state of terrifying melancholia."
32. Woman Entitled To Maternity Benefits As Long As Conception Occurs
Before Tenure Of Contract Executed Between Her & Employer Expires: Delhi
High Court

Case Title: DR. BABA SAHEB AMBEDKAR HOSPITAL GOVT. OF NCT OF DELHI
& ANR. v. DR. KRATI MEHROTRA

Citation: 2022 LiveLaw (Del) 201

The Delhi High Court has observed that as long as conception occurs before the
tenure of the contract executed between a woman-employee and her employer
expires, she should be entitled to maternity benefits as provided under Maternity
Benefits 1961 Act.

A division bench comprising of Justice Rajiv Shakdher and Talwant Singh observed
that the Act seeks to regulate the employment of women in certain establishments
for given periods before and after child-birth, and, in particular, endeavours to
provide for maternity benefit.

"Clearly, the provisions of the 1961 Act seek to invest a woman with a statutory right
to take maternity leave and seek payment for the period that she is absent from duty
on account of her pregnancy, albeit in accordance with the provisions of the 1961
Act," the Bench said.

33. Rough Estimation Of Prosecutrix's Age Given By Her Father Can't Be Used
To Rebut Documentary Evidence: Delhi HC Upholds POCSO Conviction

Case Title: Mohd. Afsar v. State, Crl. A. 274/2020

Citation: 2022 LiveLaw (Del) 109

The Delhi High Court recently refused to accept the rough estimation of age, given
by a rape victim's father, to determine whether the offences under the POCSO Act
are attracted.

Justice Mukta Gupta observed that to determine the age of a victim, suspected to
be a minor, Rule 12(3) of the Juvenile Justice (Care and Protection of Children)
Rules 2007 applies. It provides that the first priority has to be given to the
Matriculation or equivalent certificate and in the absence thereof, to the date of birth
certificate from the school first attended other than a play school.

In the instant case, the Bench noted that as per the date of birth recorded in the
school first attended, the prosecutrix was a child in terms of Section 2(1)(d) of the
POCSO Act as she was below the age of 18 years.

Thus, even if in the cross examination, her father had given a rough approximation
of her age, the same cannot be taken as an exact estimation of the date of birth of
the prosecutrix.

34. POCSO | Child Witness' Testimony Must Be Evaluated More Carefully,

Sufficient For Conviction If It Inspires Confidence & Is Reliable: Delhi HC

Case Title: Ravinder v. State

Citation: 2022 LiveLaw (Del) 85

The Delhi High Court has held that a trustworthy testimony of a child witness is
sufficient to record a conviction under the POCSO Act. At the same time, the Court
struck a note of caution that the testimony has to be evaluated more carefully.

The observation was made by Justice Manoj Kumar Ohri while hearing an appeal
against conviction under Section 12 of the POCSO Act, which pertains to sexual
harassment upon a child.

After perusing the facts and circumstances of the case, the Court finally set aside
the conviction of the accused, citing unreliable testimonies of the prosecution
witnesses.

35. "Mother Cannot Be Deprived Of Freedom To Take Decision To Continue

Or Not Continue With Pregnancy": Delhi HC Allows Termination Of 28 Weeks
Foetus

Case Title: xyz v. GNCTD

Citation: 2022 LiveLaw (Del) 2

Observing that reproductive choice is a facet of reproductive rights of a woman and
a dimension of her personal liberty, the Delhi High Court has allowed termination of
28 weeks foetus of a 33 year old woman. The foetus was suffering from various
abnormalities including Tetralogy of Fallot (TOF) with Absent Pulmonary Valve
Syndrome (APV).

Justice Jyoti Singh also observed that the mother cannot be deprived of the freedom
to take a decision to continue or not to continue with the pregnancy in the backdrop
of the foetal abnormalities brought forth in the Medical Opinion of the Board.

"As repeatedly held by the Courts, in the judgements referred above, reproductive
choice is a facet of reproductive rights of a woman and a dimension of her 'personal
liberty', enshrined in Article 21 of the Constitution of India and thus the Petitioner
cannot be deprived of the freedom to take a decision to continue or not to continue
with the pregnancy, in the backdrop of the foetal abnormalities brought forth in the
Medical Opinion of the Board," the Court said.

36. Delhi High Court Allows Medical Termination Of Pregnancy Exceeding 28

Weeks Citing Foetal Abnormalities, Emotional Distress Of Mother

Case Title: SANGEETA THAPA v. GOVERNMENT OF NCT OF DELHI & ORS.

Citation: 2022 LiveLaw (Del) 11

The Delhi High Court has allowed termination of pregnancy of a 28 year old woman
whose gestational period had exceeded 28 weeks after taking note of her mental
and emotional distress apart from the foetus abnormalities.

Justice Rekha Palli relied on a recent order of a coordinate bench wherein the Court
allowed termination of 28 weeks foetus of a 33 year old woman observing that
reproductive choice is a facet of reproductive rights of a woman and a dimension of
her personal liberty. The Court had also observed that the mother cannot be
deprived of the freedom to take a decision to continue or not to continue with the
pregnancy in the backdrop of the foetal abnormalities brought forth in the Medical
Opinion of the Board.
The petitioner in this case had sought medical termination of her pregnancy on the
ground that the foetus was suffering not only from Edward Syndrome (Trisomy 18)
but also from non-ossified nasal bone and bilateral pyelectasis.

37. [POCSO] 'Penetration Sufficient, Presence Of Semen Not Necessary':

Delhi High Court Upholds Conviction Of Man For Raping 5 Yr Old

Case Title: RAM NAWAL v. STATE

Citation: 2022 LiveLaw (Del) 12

The Delhi High Court has upheld the conviction and sentence awarded to a man for
raping a 5 year old minor victim in a POCSO case. The Court observed that
penetration is sufficient in order to constitute an offence under Section 376 (rape) of
IPC and Section 6 of the POCSO Act and that presence of the semen is not
necessary.

"Undoubtedly, as per the FSL and DNA fingerprinting report neither any semen was
detected nor were the alleles from the appellant accounted in the blood smears or
the vaginal smears of the prosecutrix. To constitute an offence punishable under
Section 376 IPC and Section 6 of the POCSO Act, penetration is sufficient and it is
not necessary that semen needs to be essentially present," Justice Mukta Gupta
observed.

The Court was dealing with an appeal challenging the judgment dated 12th January,
2018 wherein the appellant was convicted under sec. 6 of the POCSO Act. Sec. 6
of prescribes the punishment for aggravated penetrative sexual assault.

38. Convict Under POCSO Act Not Barred From Seeking Parole, Discretion
Vested In Competent Authority To Grant It Under 'Special Circumstances':
Delhi HC

Case Title: RAKESH @DIWAN v. STATE OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 424

The Delhi High Court has reiterated that a convict under the Protection of Children
from Sexual Offences Act, 2012 is not barred from seeking parole, as discretion has
been vested in the Competent Authority to grant parole to such a convict under
"special circumstances".

Justice Asha Menon added that while there is no doubt true that the Legal Services
Authorities at all levels endeavour to provide excellent legal assistance to those in
prison, however, to deny the convict an opportunity to engage with other counsel to
enable him to make up his mind freely, as to whom he would wish to engage, would
violate his constitutional rights to legal representation.

The Court was dealing with a plea seeking release of the petitioner on parole for a
period of eight weeks on the grounds of filing Special Leave Petition.

39. POCSO Act Will Be Applicable To Minor Muslim Girl Who Has Attained Age
Of Puberty: Delhi High Court

Title: IMRAN v. STATE OF DELHI THROUGH COMMISSIONER OF DELHI

POLICE & ORS.

Citation: 2022 LiveLaw (Del) 620

The Delhi High Court has rejected a contention that according to Muslim law, since
the victim has attained the age of puberty, the rigours of POCSO Act will not be
applicable.

Justice Jasmeet Singh observed that the statement of object of the POCSO Act
states that the Act is aimed to secure the tender age of the children and ensure they
are not abused and their childhood and youth is protected against exploitation.

40. POCSO Act | Delhi High Court Asks Special Courts To Grant Interim
Compensation To Child Victims Without Waiting For Them To Move An
Application

Case Title: Umesh v. State (and other connected matters)

Citation: 2022 LiveLaw (Del) 621

The Delhi High Court has observed that Special Courts must, on their own, initiate
action for grant of interim compensation to child victims at the earliest, without
waiting for them to file an application for the same.

Justice Jasmeet Singh was dealing with a bunch of pleas wherein a predecessor
bench had sought to streamline the process of supplying FIRs pertaining to
commission of sexual offences to DSLSA, for the purposes of granting interim
compensation to the victims.

The development came after the Court was apprised that when the applications are
moved before the Special Court for interim compensation, it takes two to three
hearings before any effective order is passed in the same.

41. Forcing Pregnancy Would Permanently Scar Her Psyche: Delhi High Court
Permits Minor Rape Survivor To Terminate 26 Weeks Pregnancy

CASE TITLE: MS X THROUGH HER LEGAL GUARDIAN v. GOVERNMENT OF

NCT OF DELHI & ANR.

Citation: 2022 LiveLaw (Del) 684

The Delhi High Court has permitted a minor victim of sexual assault to terminate her
pregnancy of 25 weeks and 6 days old pregnancy.

Justice Yashwant Varma, while noting that the Medical Termination of Pregnancy
Act deals with pregnancies which may only extend upto 24 weeks, highlighted that
in exceptional situations, the Court could invoke its extraordinary powers to permit
for such termination, even when the provisions of the Act, when strictly construed,
may not sanction the same.

"This Court is of the firm opinion that if the petitioner was forced to go through with
the pregnancy despite the same having been caused on account of the incident of
sexual assault, it would permanently scar her psyche and cause grave and
irreparable injury to her mental health. The Court cannot visualize a more egregious
invasion of her right to life as guaranteed by Article 21 of the Constitution."

42. Delhi High Court Modifies POCSO Conviction To Less Grave Offence,
Orders Release As Convict's Imprisonment Exceeds Maximum Punishment
Case Title: MOHD AZIZUL v. STATE

Citation: 2022 LiveLaw (Del) 784

The Delhi High Court has held that a man accused of sexually abusing a minor
cannot be punished under Section 6 of the POCSO Act for the offence of
'aggravated penetrative sexual assault' when the alleged act falls short of
'penetration'.

The bench of Justice Jasmeet Singh held that without penetration, such act is only
an attempt to rape or aggravated sexual assault as per Section 9(m) of the POCSO
Act, which is punishable under Section 10 of the Act with 5-7 years imprisonment
and fine.

The Court was dealing with an appeal against conviction for aggravated penetrative
sexual assault on a three year old minor girl by one Mohd. Azizul. He was sentenced
to rigorous imprisonment for 14 years.

The bench noted that while there was sexual assault committed on the minor and
the intent to commit rape was proved before the trial court, the statements of victim's
mother and the MLC raised a doubt regarding penetration.

43. [Muslim Law] Minor Girl Can Marry Without Parents' Consent On Attaining
Puberty, Has Right To Live With Husband Even When Below 18 Yrs: Delhi HC

Case Title: FIJA & ANR. v. State

Citation: 2022 LiveLaw (Del) 793

The Delhi High Court has observed that as per Mohammedan Law, a minor girl who
had attained the age of puberty can marry without consent of her parents and has a
right to reside with her husband even when she is less than 18 years of age.

Justice Jasmeet Singh made the observation while granting protection to a muslim
couple who got married in March this year as per Muslim rites and rituals. The plea
was moved by the couple seeking directions to ensure that nobody separates them.
The parents of the girl opposed the marriage and registered an FIR under sec. 363
of IPC against the husband. Subsequently sec. 376 and sec. 6 POCSO were added.

44. Delhi High Court Allows 16-Yr-Old To Terminate Pregnancy After

Hospitals' Refusal Over No Police Complaint

Title: X v. PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE

DEPARTMENT GOVT OF NCT OF DELHI & ORS.

Citation: 2022 LiveLaw (Del) 898

Allowing a woman's prayer for immediate termination of the pregnancy of her minor
daughter, the Delhi High Court has directed the Centre to ensure that the procedure
is done at the national capital's All India Institute of Medical Science on government
expenses.

The government and private hospitals had earlier refused to terminate the
pregnancy since the family of the teenager was unwilling to report the case to the
police.

Section 19 of the POCSO Act makes it mandatory for any person apprehending an
offence under the Act is likely to be committed or has knowledge about the same,
to report such incident to a Special Juvenile Police Unit or the local police. The
medical practitioners also are obliged under law to file a report regarding the
pregnancy.

45. [JJ Act] Extracting Confession From Child Is Unconstitutional, Beyond

Scope Of Preliminary Assessment Report: Delhi HC

Case Title: Court on its own motion v. State

Citation: 2022 LiveLaw (Del) 899

The Delhi High Court has observed that extracting confession from a child regarding
the manner in which the offence was committed by him is unconstitutional and
beyond the scope of a preliminary assessment report required to be prepared under
the Juvenile Justice (Care and Protection of Children) Act, 2015.
As per Section 15(1) of the Act, a Juvenile Justice Board (JJB) is required to make
a preliminary assessment regarding the juvenile's mental and physical capacity to
commit an offence and the ability to understand its consequences along with the
circumstances under which allegedly the offence was committed.

However, there are no guidelines as to how the Board would conduct such a
preliminary assessment.

The observations have been made by a division bench of Justice Mukta Gupta and
Justice Anish Dayal while dealing with a criminal reference concerning issuance of
guidelines to be followed by Juvenile Justice Boards in conducting preliminary
assessment to try a juvenile as an adult.

46. 'Apathy Of Authorities Seeping Through Cracks': Delhi High Court Issues
Guidelines For Better Functioning Of Child Care Institutions

Case Title: RAJESH KUMAR v. STATE (GOVT. OF NCT OF DELHI) & ORS.

Citation: 2022 LiveLaw (Del) 917

The Delhi High Court has issued a slew of guidelines for better functioning of child
care institutions in the the national capital and said it is unfortunate that the "apathy
of authorities" is seeping through the cracks and hampering the development of
those at a vulnerable age.

Stressing on the need for improving existing institutions to ensuring that quality
standard of care is provided to children, Justice Subramonium Prasad said there is
a complete lack of direction and initiative among persons manning these institutions
as to how they must guide the children towards a better future

Justice Prasad made the observations and passed guidelines as well as directions
in an order in a plea seeking a magisterial enquiry into an incident concerning
escape of five minor girls in March last year from a children home in the city and
other similar incidents reported in the past.

47. 16-Yr-Old's Consent Immaterial: Delhi High Court Denies Bail To 23-Yr-Old
Married Man, Says Facts Specially Disentitle Him From Bail In POCSO Case
Case Title: Javed vs State NCT Of Delhi

Citation: 2022 LiveLaw (Del) 1134

Reiterating that a minor's consent is immaterial in the eyes of law, the Delhi High
Court recently denied bail to a 23-year-old man in a POCSO case, who is accused
of allegedly raping a 16-year-old minor, observing that his age and the fact that he
was already married, disentitle him from getting bail.

Justice Jasmeet Singh also took note of the submission that the accused had got
date of birth of the complainant changed in the Aadhaar card to show her as major.

"The conduct of the applicant of getting the date of birth changed in the Aadhar card
of the complainant is a serious offence. It seems that the applicant wanted to take
advantage by getting the Date of Birth on the Aadhar Card changed so that when
the applicant established physical relationship with the complainant, she was not a
minor," the court said.

48. Limitation Period Won't Come In Way Of Moving Applications For

Compensation To Victims Of Sexual Offences: Delhi High Court

Case Title: Umesh v. State (and other connected matters)

Citation: 2022 LiveLaw (Del) 1193

Directing Delhi State Legal Services Authority (DSLSA) to move applications on

behalf of the victims of sexual offences for compensation in the cases registered
between 2012 to 2017, the Delhi High Court has clarified that there will be no
requirement to file a separate application for condonation of delay to seek
compensation in such cases.

Observing that since no limitation for filing an application for compensation is

provided under Section 357(A) of the Cr.PC or Section 33 of the POCSO Act, such
a provision under the Part-II of the Delhi Victims' Compensation Scheme (DVCS)-
2018 cannot be used or invoked in a hyper- technical manner to defeat the rights of
the victim for whose assistance and support the entire Scheme has been formulated.
49. Seven Years After Release, Delhi High Court Sentences Man To 5 Years In
Jail For Sexual Assault Of 4-Year-Old

Case Title: STATE (GOVT OF NCT OF DELHI) v. Pappu

Citation: 2022 LiveLaw (Del) 972

More than 7 years after he was released on probation — even though he had spent
just nine months in jail, the Delhi High Court has sentenced the man to five years
rigorous imprisonment for sexually assaulting a four-year-old minor victim.

The man was convicted for the offences under Section 363 (Punishment for
kidnapping) of Indian Penal Code, 1860 and Section 10 (Punishment for aggravated
sexual assault) of Protection of Children from Sexual Offences (POCSO) Act in
2015.

However, instead of sentencing him to imprisonment, the trial court on 10.02.2015

gave the convict the benefit of probation and released him for the period already
undergone in custody. As per the nominal roll, he had undergone 9 months and 26
days in jail on the day of release.

50. POCSO Act Meant To Protect Minors From Sexual Abuse, Not Criminalize
Consensual Romantic Relationships Of Young Adults: Delhi HC

Case Title: AK vs STATE GOVT OF NCT OF DELHI AND ANR

Citation: 2022 LiveLaw (Del) 1077

The Delhi High Court has said that the intention of The Protection Of Children From
Sexual Offences (POCSO) Act was to protect the children from sexual abuse and
not criminalise consensual romantic relationships of young adults.

Justice Jasmeet Singh said the factum of a consensual relationship borne out of
love should be of consideration while granting bail.

51. POCSO Act | Sexual Harassment Of A Child Is A Cognizable And Non-

Bailable Offence: Delhi High Court
Case Title: R.K. TARUN v. UNION OF INDIA & ORS.

Citation: 2022 LiveLaw (Del) 1117

The Delhi High Court has ruled that sexual harassment of a child, which is
punishable under Section 12 of Protection of Children from Sexual Offences
(POCSO) Act, 2012, is a cognizable and non-bailable offence.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium
Prasad said that the offence would fall within the scope of the second category of
Part II of Schedule I of the Code of Criminal Procedure.

The said category states that if the offence is punishable with imprisonment of three
years and upwards but not more than seven years, then it will be a cognizable and
non-bailable offence and will be triable by a judicial magistrate of first class.

52. Gravity Of Offence Cannot Overweigh Legal Proof: Gujarat High Court
Upholds AcquittalOf POCSO Accused

Case Title: State Of Gujarat V/S Hasmukhbhai @Harshadbhai Dahyabhai Makwana

Citation: 2022 LiveLaw (Guj) 266

The Gujarat High Court has dismissed the appeal of the StateGovernment
challenging the acquittal of a person accused under the POCSO Act, citing lack of
evidence. A bench of Justice SH Vora and JusticeRajendran Sareen observed:

"Here in this case it is to be noted that on one side the complainant has alleged
against the respondent accused regarding sexual assault upon her victim daughter
and merely after a span of 3 to 4 days she has alleged against her own husband
regarding sexual assault upon her victim daughter. As such, two contradictory
versions have been stated by the complainant within a span of 4 days against two
persons and both the allegations are based on suspicion and doubt, one against the
present respondent accused and another against her husband. As such, mere
suspicion and doubt cannot be considered to be cogent and convincing proof to
prove the allegations."
53. Gujarat High Court Grants Anticipatory Bail To 62 Yrs Old POCSO Accused
Citing"Improvements" In Minor Prosecutrix's Version

Case Title: Salimbhai Ibrahimbhai Mir V/S State OfGujarat

Citation: 2022 LiveLaw (Guj) 316

The Gujarat High Court has granted anticipatory bail to a62-year-old, accused of
sexuall assaulting a 17 years old after intoxicatingher.

The man was booked under Sections 363, 366 and 376 IPC andSections 4, 6 and
8 of the POCSO Act.

While granting relief, the High Court took into account several factors such as
improvement in Prosecutrix's version, subsequent conduct of the accused, etc.

54. 'No Shout For Help': Gujarat High Court Upholds Acquittal Of POCSO
Accused,Disbelieves Prosecutrix's Birth Certificate

Case Title: State Of Gujarat V/S Pratap Prabhuram Devasi

Citation: 2022 LiveLaw (Guj) 346

The Gujarat High Court has upheld the acquittal of an accused under the POCSO
Act on the ground that the victim's allegations were unreliable and contained several
omissions and contradictions.

While dismissing the State's appeal, a bench of JusticeSH Vora and Justice
Rajendra Sareen noted that at the time of alleged incident, both brothers of the
prosecutrix were at home but, she did not shout for help. "Not only that, she did not
disclose to any of her relatives, who came at her home despite she was asked."

55. "GuruBrahma, Gurur Vishnu": Gujarat HC Invokes Sanskrit Shloka;

Refuses Bail ToTeacher Charged Under POCSO Act

Case Title: Nihar Ranjitbhai Barad v. State of Gujarat

Citation: 2022 LiveLaw (Guj) 414

The Gujarat High Court, while refusing bail to a teacheraccused of committing
aggravated sexual assault on his student aged 12 years,invoked a Sanskrit verse
and highlighted the role and impact of a 'Guru'in the life of his/her 'Disciple'.

Justice Samir J. Dave said:

"The accused is not a layman, but a teacher. The only career that influences other
professions is teaching. It has the power to influence young people's future for the
benefit of future generations. The teacher is expected to act as a protector. Such
heinous acts would cast a lifelong psychological and emotional impact on the
victim."

56. Absence Of Abrasion Of 12-Yr-Old Girl's Teeth Marks On Body Of Accused

Is Of No Consequence: HP High Court Upholds POCSO Conviction

Case title - Rajesh Kumar v. State of Himachal Pradesh

Citation: 2022 LiveLaw (HP) 8

While upholding the conviction of a man under the POCSO Act for sexually
assaulting a 12-year-old girl, the Himachal Pradesh High Court on Tuesday
observed that it is not necessary that every bite, that too of a child of 12 years old
who is trying to rescue herself from the clutches of 37 years old person, would cause
injury, abrasion or teeth marks on the body of the accused.

Under these circumstances, the Bench of Justice Vivek Singh Thakur held that
the absence of external injury, abrasion of teeth marks on the body of the accused
would be of no consequence and the same can't be the basis of acquittal of the
accused.

57. POCSO Act Does Not Impose Any Special Prohibition On Grant Of Bail:
Himachal Pradesh High Court

Case Title : PRATAP v STATE OF HIMACHAL PRADESH

Citation: 2022 LiveLaw (HP) 23

The Himachal Pradesh High Court recently observed that the POCSO Act, which
punishes sexual interactions with minors, does not impose any special prohibition
for grant of bail.

Justice Satyen Vaidya remarked:

"POCSO Act does not impose any special prohibition for grant of bail in offence(s)
committed under the Act. Rather, Section 31 thereof makes provisions of Code of
Criminal Procedure including provisions as to bail and bonds applicable to the
proceedings therein."

58. Himachal Pradesh High Court Issues Directions To POCSO Courts For
Protection Of Identity Of Rape, Sexual Offence Victims

Case title - State of Himachal Pradesh v. Shiv Lal

Case Citation: 2022 LiveLaw (HP) 32

The Himachal Pradesh High Court recently issued certain directions to

the Special POCSO Courts so as to ensure that the identity of the child victim shall
not be disclosed, at any time, during the course of investigation or trial.

The bench of Justice Tarlok Singh Chauhan and Justice Virender Singh issued
these directions while dealing with an appeal preferred by the state government
against the acquittal of an accused under Sections 363, 366, 376 of the Indian
Penal Code and Section 4 of the POCSO Act.

59. Presumption U/S 29 POCSO Act Comes Into Play Even At Pre Trial Stage:
Jammu & Kashmir & Ladakh High Court

Case title - Mubarak Ali Wani v. Union Territory through Police Station

Case Citation: 2022 LiveLaw (JKL) 10

The Jammu and Kashmir and Ladakh High Court has observed that presumption
under Section 29 of the Protection of Children from Sexual Offences Act, 2012
(POCSO Act) comes into play even at the pre-trial stage
Court, while dismissing the instant bail plea, remarked thus:

"Perusal of the record tends to show that there is material on record prima-
faciesuggesting involvement of the petitioner in the alleged offences and having
regard to the principles and propositions of law laid down by the Apex court on the
subject of bail as noticed above, particularly keeping in view the nature of
accusation, severity of punishment so on and so forth, the petitioner is held not
entitled to bail at this stage."

60. Summary General Court Martial Can Try Cases Under POCSO Act, Must
Protect Identity, Dignity & Psychology Of Victim Child: J&K&L High Court

Case Title : Naik Bibhu Prasad v Union of India and others

Citation : 2022 LiveLaw (JKL) 42

The High Court of Jammu and Kashmir and Ladakh observed that there is no
provision in the POCSO Act that bars the jurisdiction of Summary General Court
Martial (SGCM) to try the offences mentioned thereunder.

Judge Rajnesh Oswal observed that

"There is no provision in the Act of 2012 that bars the jurisdiction of SGCM to try the
offences under the Act of 2012. Rather section 42-A of Act of 2012 provides that the
provisions of this Act shall be in addition to and not in derogation of provisions of
any other law for the time being in force and in case of any inconsistency only, the
provisions of this Act shall have overriding effect on the provisions of any such law
to the extent of inconsistency.

61. Repeated Sexual Activity With 9 Yr Old Child Not Possible Sans Any Injury
In Vaginal/ Genital Area: JKL HC Sets Aside Rape Conviction

Case Title: Ishfaq Ahmad Khan v. State of J&K & Ors.

Citation: 2022 LiveLaw (JKL) 62

A bench comprising Justice M A chaudhary observed repeated sexual activity on a

9 year old child is not possible without any injury in the vaginal /genital area.
The Court also noted that though accused could be held guilty for the commission
of offence of rape based on the solitary evidence of the prosecutrix, however the
same must inspire confidence and should appear to be absolutely trustworthy,
unblemished and should be of sterling quality.

62. DNA Tests Can Encroach On Privacy & Physical Autonomy, Can't Be
Directed As A Matter Of Course: Jharkhand High Court

Case title - Afan Ansari vs. The State of Jharkhand and another [W.P. (Cr.) No. 536
of 2022]

Case Citation: 2022 LiveLaw (Jha) 97

The Jharkhand High Court has observed that the order to conduct DNA Tests cannot
be passed as a matter of course as such a direction may encroach privacy and
physical autonomy of a person.

With this, the bench of Justice Sanjay Kumar Dwivedi upheld an order of the Special
Judge, POCSO, Ranchi rejecting the plea of the man, facing rape charges under
the POCSO Act, seeking a direction to conduct his own and the child's DNA
examination.

63. Karnataka High CourtIssues Directions To Ensure Victim Is Given Notice

Of All Bail Proceedings Concerning POCSO Cases

Case Title: Bibi Ayesha Khanum v. Union Of India Case No: WritPetition
No.2318 OF 2022

Citation: 2022 Livelaw (Kar) 59

The Karnataka High Court recently issued directions for the effective implementation
of the Protection of Children From Sexual Offences Act 2012, and the Protection of
Children from Sexual Offences Rules, 2020, particularly incases where the accused
were to move the Court for grant of bail. A division bench of Chief Justice Ritu Raj
Awasthi and Justice Suraj Govindaraj disposing of a public interest litigation filed by
a mother of a survivor, said,"None can have any doubt that offences under the
POCSO Act are heinous in nature and are more often than not committed by
depraved persons."
64. POCSO Act | ProsecutionCan Cross Examine The Victim On Her Turning
Hostile : Karnataka High Court

Case Title: State Of Karnataka v. Somanna Case No:. CRIMINALPETITION

No.8167/2020

Citation: 2022 LiveLaw (Kar) 86

The Karnataka High Court has said that under the Protection ofChildren from Sexual
Offences Act, 2012, the prosecution can cross examine the victim on her turning
hostile.

A single judge bench of Justice M. Nagaprasanna said, "In terms of sub-section (2)
of Section 33 of the POCSO Act, the Special PublicProsecutor or as the case would
be, the counsel appearing for the accused shall, while recording examination-in-
chief, cross-examination or re-examination of the child communicates the questions
to be put to the child to the Special Court which shall in turn put those questions to
the child.Therefore, the victim is permitted to be cross-examined under the POCSO
Act itself on her turning hostile which would also cover the situation under sub-
section (2) of Section 33 of the POCSO Act."

65. Man Accused Of RapingWife & Minor Daughter - Special Court Can Try
Offences Under S.376 IPC& POCSO : Karnataka High Court

Case Title: Hrishikesh Sahoo V State Of Karnataka Case No: WritPetition

No.48367 Of 2018

Citation: 2022 Livelaw (Kar) 89

The Karnataka High Court has said that the trial against the husband accused of
rape and charged under section 376 of the Indian Penal Code and also of sexually
assaulting his daughter and charged under sections of theProtection of Children
from Sexual Offences Act can be held before the Special POCSO Court. While
refusing to quash the charges under Section 376 IPC against the husband ,a single
judge bench of Justice M Nagaprasanna said , "The designated Court hearing cases
relating to offences under the POCSO Act can try the offences under the IPC as
well, in the facts of the case."
66. POCSO Act Not InDerogation Of Any Other Law, Has Overriding Effect In
Case Of Inconsistency: Karnataka High Court

Case Title: THE STATEOF KARNATAKA v. SHANKAR URF SHANKRAPPA S/O

RAMPPA HUBBALLI Case No: CRL.A.NO.100242/2018,

Citation: 2022 LiveLaw(Kar) 143

The Karnataka High Court recently increased the sentence of imprisonment from
seven years to ten years, imposed on an accused convicted for raping a minor girl
and charged under sections of the Protection of Children From Sexual Offences
(POCSO) Act.

67. POCSO Act | Bar U/S33(5) To Recall Minor Victim Not Applicable After Her
Attaining Majority:Karnataka High Court

Case Title: MAHAMMADALI AKBAR @ ALI UMAR v State of Karnataka

Case No: CRIMINALPETITION No.4449 OF 2022

Citation: 2022 LiveLaw(Kar) 201

The Karnataka High Court has held that on the child attaining 18years of age, the
rigor under Section 33(5) of the Protection of Children fromSexual Offences Act,
2012 Act gets diluted and sequentially, will not become abar for seeking recalling
and further cross-examination of the victim underSection 311 of the CrPC on an
application made by the accused.

68. Doctrine Of Sameness Not Attracted When Victims Differ: Karnataka High
Court Refuses To QuashMultiple POCSO FIRs Against School Teacher

Case Title:PRABHUNAIKA K.T v. STATE OF KARNATAKA

Case No: CRIMINALPETITION No.2015 OF 2022

Citation: 2022 LiveLaw(Kar) 242

The Karnataka High Court has observed that the 'Doctrine of Sameness' is not
applicable if cases against the accused registered under theProtection of Children
from Sexual Offences Act, are filed at different periods of time by different
complainants.

69. Karnataka High Court Refuses To Quash POCSO Case Against School
Teacher Who 'Removed Student's Pants' As Punishment

Case Title: THAHSEEN BEGUM @ TASI v STATE OF KARNATAKA

Case No: WRIT PETITION NO. 12097 OF 2022

Citation: 2022 LiveLaw (Kar) 311

The Karnataka High Court has refused to quash a case of sexual harassment
registered against a school teacher under the provisions of the Protection of
Children from Sexual Offences Act for allegedly beating a 5-year-old student and
removing her pants, revealing the body of the child as a measure of punishment.

70. POCSO Act Casts Burden Of Proof Upon Accused, Application U/S 311
CrPC To Summon Material Witnesses Should Ordinarily Be Allowed:
Karnataka HC

Case Title: PERIYASWAMY M v. STATE OF KARNATAKA

Case No: CRIMINAL PETITION NO. 6288 OF 2022

Citation: 2022 LiveLaw (Kar) 319

In connection with a trial under the POCSO Act, the Karnataka High Court has said
that an application made by the accused under Section 311 of the CrPC for
summoning of material witnesses should be ordinarily permitted unless the Court
comes to a conclusion that it is a ruse to drag the proceedings or permitting it, would
become an abuse of the process of the law.

71. POCSO Case Against Minor Can Be Quashed On Parties Arriving At Mutual
Settlement: Karnataka High Court
Case Title: AJ v. State of Karnataka

Citation: 2022 LiveLaw (Kar) 355

The Karnataka High Court on Friday allowed a petition filed by a minor boy and set
aside the investigation initiated against him under sections of the Protection of
Children from Sexual Offences Act (POCSO) for allegedly sexually assaulting a
minor girl, following a mutual settlement having arrived at between the parties.

72. Karnataka High Court Quashes POCSO Case Against Muslim Man For
Impregnating Minor Wife

Case Title: MOHAMMAD WASEEM AHAMAD & Others v. 1 STATE BY

CHANDRA LAYOUT POLICE STATION.

Case No: CRIMINAL PETITION NO.5917 OF 2022

Citation: 2022 LiveLaw (Kar) 436

The Karnataka High Court has quashed the POCSO case registered against a
Muslim man for impregnating his minor wife. The matter was put to rest after a
settlement between the accused and the victim, who was married to him as per the
Mohammedan Law.

The order was passed by Justice K.Natarajan on 10th October, two days before
another single bench of the High Court declared that POCSO Act overrides personal
law and thus, the age for involving in sexual activities is 18 years.

73. Teenage Relationships & POCSO: Karnataka HC Asks Law Commission

To Rethink Age Of Consent For Sex

Citation: 2022 LiveLaw (Kar) 443

In a significant observation, the Karnataka High Court has said that in view of the
ground realities, it is imperative for the Law Commission to rethink on the age of
consent under the POCSO Act.
74. Publicise Toll-Free Number 112 As An Emergency Response Support
System For Sexual Assault, Child Abuse Survivors: Kerala High Court

Case Title: X v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 239

The Kerala High Court on Monday issued a set of suggestions for the State to
consider to assist survivors of child abuse or sexual violence, while particularly
emphasising the need to take steps to publicize the Toll-Free Number '112' as an
Emergency Response Support System. Justice Devan Ramachandran reiterated
that the growing number of cases of hapless victims being driven to stages of
despondency bears testimony to the suspicion that the measures currently in place
are not being implemented properly.

75. Teens Engage In Sex Unmindful Of Drastic Consequences Under POCSO

Act: Kerala High Court Calls For Awareness In Schools

Case Title: Anoop v State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 271

The Court expressed its concerns over adolescents being unaware of the
consequences of having sexual relationships with each other, even if they are
consensual, under the Protection of Children from Sexual Offences (POCSO) Act
and the amended Section 376 of IPC. Justice Bechu Kurian Thomas was
adjudicating upon a bail application when he commented on the alarming rise in the
number of sexual offences being committed against school children, most of them
being cases where teenagers indulged in sexual relationships, oblivious to the
severe consequences under the POCSO Act.

76. Young Minds Develop Negative Notions Of Justice Delivery System:

Kerala HC Suggests Introducing Child-Friendly Rooms In Family Courts

Case Title: Shiju Joy A v. Nisha and connected cases

Citation: 2022 LiveLaw (Ker) 311

The Kerala High Court has suggested introducing child-friendly rooms in all Family
Courts in the State after finding that they were operating with inadequate
infrastructure and facilities. The Court thereby directed the Registrar of the District
Judiciary to submit a report on the number of POCSO Courts functioning in the near
vicinity of all Family Courts and to explore the possibility of dedicating a separate
room in all the Family Courts. A Division Bench of Justice A Muhamed Mustaque
and Justice C.S Dias observed that the congested and overcrowded premises often
scar young children who are forced to visit the courts with an averse idea of the
justice delivery system in the country.

77. Worried By Increasing Child Pregnancies & Easy Access To Porn, Kerala
High Court Stresses Need For Proper Sex Education

Case Title: X v. Union of India & Ors.

Citation: 2022 LiveLaw (Ker) 368

The Kerala High Court on Thursday expressed its concerns over the glaring
absence of adequate sex education in schools amid the rising number of child
pregnancies, which are, unfortunately, often a result of sexual abuse by close
relatives. Justice V.G. Arun thereby asked the authorities to reconsider the sex
education and safe use of the internet and social media being imparted at the
schools in the State.

78. POCSO Act | Courts Must Be Sensitive To Victim's Plight But Should Not
Accept Allegations As Gospel Truth In Every Case: Kerala High Court

Case Title: XXXX v. State of Kerala and others

Citation: 2022 LiveLaw (Ker) 379

The Kerala High Court while allowing a pre-arrest bail application, observed that in
matters of alleged sexual offences, especially against minor victims, the courts must
be sensitive to the plight of the victims; however, that does not mean that the
allegations ought to be accepted as the gospel truth in every case. Justice Bechu
Kurian Thomas cautioned the courts about false allegations to achieve ulterior
objectives and observed that tutoring a witness by the parents even while
considering an application for bail cannot be ignored.
79. Young School Children Indulging In Sexual Crimes, No Awareness: Kerala
HC Directs Govt., CBSE To Stipulate Prevention-Oriented Curriculum

Case Title: Anoop v. State of Kerala & Ors.

Citation: 2022 LiveLaw(Ker) 452

The Kerala High Court on Friday directed the State Government and the CBSE to
issue necessary orders making it mandatory for every school in the state under their
control to include a "Prevention-Oriented Program on Sexual Abuse" in the
curriculum.

Justice Bechu Kurian Thomas expressing his anguish at the alarming rise in the
number of sexual offences committed on school children and noticing that, in many
instances, the perpetrators themselves were students, observed that the voice of
the victims of sexual abuse should not be suppressed, and it is only through
education that the victim can be empowered to speak out.

80. No Bar On Continuing Disciplinary Action Against Teacher Pending

Criminal Prosecution Under POCSO Act: Kerala High Court

Case Title: Jollyamma V. Thomas v. State of Kerala & Ors.

Citation: 2022 LiveLaw(Ker) 544

The Kerala High Court on Wednesday observed that there is no ban on the
continuation of disciplinary proceedings by Educational Authorities against teachers
who are subject to criminal prosecution for offence of child harassment or offences
under the Protection of Children from Sexual Offenses Act.

The Court noted that as soon as a teacher is arrested for a crime, they are
suspended from their service. However, in the majority of instances, educational
authorities do not complete the disciplinary processes under a mistaken impression
that they cannot proceed against the teacher until the Criminal Court has rendered
a decision in the pending case.
81. POCSO Act Prevails Over SC/ST Act; Accused Entitled To Directly
Approach High Court U/S 439 CrPC When Charged Under Both Statutes:
Kerala HC

Case Title: Renoj R.S. v. State of Kerala & Anr

Citation: 2022 LiveLaw (Ker) 546

The Kerala High Court has held that the Protection of Children from Sexual Offences
Act, 2012 (POCSO Act) prevails over the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (SC/ST Act). Thus, when offences under both the Acts have been alleged,
the accused would be entitled to avail the procedure contemplated under the former
for bail.

The Court found that by virtue of Section 31 of the POCSO Act which makes the
provisions of the Code of Criminal Procedure (Cr.P.C.) applicable, the accused
person could approach the High Court under Section 439 Cr.P.C.

Justice Bechu Kurian Thomas, while holding so, observed that,"...it is pertinent to
notice that despite the SC/ST Act being amended in 2015 and 2018, the overriding
effect of POCSO Act, in the event of inconsistency, has not been nullified or
interfered with by the Parliament. Thus, it is evident that the legislature intended to
give supremacy to the POCSO Act, even over the SC/ST Act, in the event of any
inconsistency".

82. [POCSO Act] Unilateral Bail Cancellation Without Hearing Accused Not
Legal: Kerala High Court

Case Title: Muhammed Yasin v. Station House Officer & Anr.

Citation: 2022 LiveLaw (Ker) 566

The Kerala High Court on Wednesday reiterated that while hearing an application
for cancellation of bail, even of an accused booked under the POCSO Act, an
opportunity of hearing must be accorded to the accused. It condemned the action of
a local Fast Track Court which cancelled the bail of the Petitioner herein, an accused
under Sections 354A(I)(i) IPC and Sections 9 and 10 of the Protection of Children
from Sexual Offences Act, 2012, with an opportunity of hearing. The bail cancellation
was sought on the ground that the accused-Petitioner had contacted the victim child
and violated other bail conditions.

Justice Kauser Edappagath, while setting aside the bail cancellation order, observed
that, "When the cancellation of bail is sought either on the ground of post conduct
of the accused like violation of the conditions of the bail or on the ground of the
occurrence of supervening circumstances, the court must issue notice to the
accused to explain why the bail granted to him should not be cancelled. He should
also be given a fair opportunity of hearing. The order cancelling the bail unilaterally
without hearing the accused cannot withstand legally".

83. Muslim Marriages Not Excluded From POCSO Act, Physical Relationship
With Minor An Offence Irrespective Of Validity Of Marriage: Kerala High Court

Case Title: Khaledur Rahman v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 600

The Kerala High Court has ruled that a marriage between Muslims under personal
law is not excluded from the sweep of the POCSO Act.

Justice Bechu Kurain Thomas said if one of the parties to the marriage is a minor,
irrespective of the validity or otherwise of the marriage, offences under the POCSO
Act will apply.

The court disagreed with the view taken by the Punjab and Haryana High Court in
Javed v. State of Haryana (2022 LiveLaw (PH) 276); by Delhi High Court in Fija and
Another v. State Govt. of NCT of Delhi and Others (2022 LiveLaw (Del) 793) and by
Karnataka High Court in Mohammad Waseem Ahamad v. State (2022 LiveLaw (Kar)
436). "With respect to the learned Judges, I am unable to agree to the proposition
laid down in those decisions that an offence under the POCSO Act will not get
attracted against a Muslim marrying a minor," Justice Thomas said.

84. Non-Reporting Of Child Sexual Abuse Is A Bailable Offence Under POCSO

Act: Kerala High Court

Citation: XXXXX v. State of Kerala

Citation: 2022 LiveLaw(Ker) 614

The Kerala High Court on Thursday held that the offence punishable under Section
21 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 is a
bailable offence. Section 21 makes the failure to report an offence under POCSO
Act punishable with imprisonment upto six months or if the person is in charge of an
institution or company, imprisonment can extend upto one year.

Justice Bechu Kurian Thomas said if the statute does not declare a particular
offence as bailable or non-bailable, reference has to be made to the schedule
attached to the CrPC.

The court noted Section 21 of POCSO Act makes contravention of Section 19 and
Section 20 of the Act punishable but by itself does not declare the offence to be a
non-bailable offence."A reading of the Schedule to Cr.P.C. extracted above
evidences that if, under other laws, the offence is punishable with imprisonment for
less than three years or with fine only, the offence is bailable and non-cognizable. It
is thus evident that section 21 of the POCSO Act, which provides for a punishment
of six months or a maximum of one year, is a bailable offence," said the court.

85. S.33(5) POCSO Act | Child Witness Can Be Recalled For Just Decision Of
Case; Bar On Special Courts Not Absolute: Kerala High Court

Case Title: Vineeth v. State of Kerala

Citation: 2022 LiveLaw (Ker) 656

The Kerala High Court on Monday observed that the statutory bar imposed on
Special Courts by Section 33(5) of the Protection of Children from Sexual Offences
Act, 2012 (hereinafter referred to as 'POCSO Act') to ensure that a child is not
repeatedly called to to testify in the court is not absolute.

Justice Kauser Edappagath observed, that the bar under Section 33(5) of POCSO
Act is not absolute. In appropriate cases, if it is necessary for the just decision of the
case, of course the child witness can be recalled.

86. Being Indian Citizen Every Girl Has Right To Live Peaceful Life: MP High
Court Refuses To Quash POCSO Case Based On Compromise
Case title - Hani Sharma vs. State of M.P. & Anr.

Citation: 2022 LiveLaw (MP) 5

"Every girl being a citizen of India has a right to live her life peacefully and without
any threat to her dignity and life," observed the Madhya Pradesh High Court as it
refused to quash a POCSO Case based on a compromise between the 17-year-old
victim and a man, accused of stalking and harassing her for two years.

The Bench of Justice G. S. Ahluwalia noted that it was a case where the applicant-
accused was continuously stalking and harassing the victim and caught hold of her
hand in a public place when she had come to her house for celebrating Deewali and
therefore, refused to quash the case.

87. Prosecutrix Developed Physical Relation By Her Own Wish, Ready To

Marry Accused: Madhya Pradesh High Court Grants Bail In POCSO Case

Case Title: Shobit Nigam v. The State of Madhya Pradesh

Citation: 2022 LiveLaw (MP) 36

The High Court of Madhya Pradesh recently allowed a bail application of the
Applicant, accused under the provisions of IPC and POCSO Act after considering
the categorical statement made by the Prosecutrix, whereby she conveyed that she
was a well-educated, grown up with a sound mind and that she developed physical
relation with the Applicant by her own wish and was also ready to marry him.

Justice Sanjay Dwivedi was essentially dealing with a bail application moved by the
Applicant, accused for offences U/S 363, 366, 376 (3), 376(2)(n) IPC and U/S 5(L),
6 POCSO Act. He was in custody since October last year.

88. MP High Court Refuses To Quash Charges Framed Against Advocate U/S
19&21 POCSO Act For 'Ill-Advising' Rape Accused To Conceal Crime

Case Title: Hiralal Dhurve Vs. The State of Madhya Pradesh and others

Citation: 2022 LiveLaw (MP) 81

The Madhya Pradesh High Court refused to interfere with the charge framed against
an Advocate under the POCSO Act for 'ill-advising' the accused and Prosecutrix in
a rape case, suggesting them 'not to disclose true facts to the police'.

Justice Sanjay Dwivedi was dealing with a criminal revision preferred by the
Applicant aggrieved by order of the trial court, whereby he was charged for offence
punishable under Section 19 (Reporting of offences) and 21 (Obligation of media,
studio and photographic facilities to report cases) POCSO Act.

89. Madhya Pradesh High Court Relies On 'Two Fingers Test' To Cancel Bail
Of Rape Accused

Case Title : FATHER OF PROSECUTRIX-X v STATE OF MADHYA PRADESH

Citation: 2022 LiveLaw (MP) 115

The Madhya Pradesh High Court recently set aside the bail granted to rape accused
under the provisions of POCSO Act, observing that although the medical report of
the Prosecutrix did not mention any definite opinion of rape, it pointed out that her
hymen was ruptured and two fingers were easily going in her vagina, which prima
facie corroborated the fact that she was sexually abused.

Dealing with the application for cancellation of bail under Section 439(2) CrPC
moved by the father of the Prosecutrix, Justice R.K. Dubey observ

Though, in the medical examination report of the prosecutrix, it is mentioned that no

definite opinion can be given regarding rape but apart from that it is also mentioned
that the hymen was old torn and two fingers were easily going in the vagina which
prima facie corroborates the fact that she was sexually abused.

90. Madhya Pradesh High Court Directs Action Against Lower Court Judge for
Not Considering DNA Report in POCSO Case

Title: State of Madhya Pradesh v. Golu

Case Citation: 2022 LiveLaw (MP) 142

The High Court of Madhya Pradesh recently directed action against a lower court
judge for not considering a crucial medical evidence of DNA report while acquitting
the accused in a POCSO case. The Court observed that despite the medical report
being brought on record, the same did not find mention in the impugned judgment
passed by the respective trial court judge.

The division bench of Justice Sujoy Paul and Justice D.D. Bansal was hearing the
application for grant of leave to appeal moved by the State against the impugned
judgment passed by the lower court, whereby the accused was acquitted of charges
punishable U/S 376-(A) (B), 377 IPC, U/S 6 POCSO Act and U/S 3(2)(5) of SC/ST
(Prevention of Atrocities) Act for allegedly raping the Prosecutrix who, at the time of
the incident, was 10 years old.

91. POCSO Act | Bar U/S 33(5) To Recall Minor Victim Not Applicable After Her
Attaining Majority: Madras High Court

Case Title: S. Ganeshan v. State Represented by Inspector of Police

Citation: 2022 LiveLaw (Mad) 116

Madras High Court has held that the bar under Section 33(5) of the POCSO Act
against recalling a child (minor victim) is not applicable after such victim attains
majority.

Justice A.D Jagdish Chandra, while allowing the petitioner-accused's plea held
that the victim is now 21 years old and she will not fall within the definition of "child"
so as to invoke Section 33(5) of the POCSO Act, 2012. Section 33(5) of the Act only
mandates that the child witness cannot be called repeatedly to testify in the Court.

The court also relied on decision of Apex Court in Godrej Pacific Tech. Ltd. v.
Computer Joint India Ltd. (2017) and noted that it is mandatory for a court under
Section 311 CrpC to recall witnesses for further cross-examination if their evidence
appears to be essential for just decision of the case. the court also highlighted that
the child's right under Section 33(5) of the POCSO Act has to be balanced with the
right of the accused.

92. 'She Was In School Uniform': Madras High Court Confirms Conviction
Under POCSO Act, Commutes Life Sentence Of Three
Case Title: Pastor Muniyandi @ Ramesh & Ors. v. State Represented by
Inspector of Police

Citation: 2022 LiveLaw (Mad) 128

Madras High Court has commuted the life sentence of three accused including a
pastor involved in the acts of kidnapping, marrying and sexually assaulting a Class
X Student.

Justices P.N Prakash and A. A Nakkiran took note of a particular submission by

A2 and A3 that they were unaware of the age of the victim and genuinely believed
her to be over 18 years. The court, however, observed that though the argument
appears to be 'a little convincing' at the first blush, the cross-examination of the
victim has revealed that she was in a school uniform when taken to the houses of
accussed.

Life imprisonment imposed on Vijayakumar-A1 under Section 6 of the POCSO Act

[Punishment for aggravated penetrative sexual assault] was reduced to 14 years
rigorous imprisonment, without any remission benefits. Life imprisonment imposed
on Pastor Muniyandi-A2 and Joseph Raja-A3 under Section 6 R/w Section 17 of the
POCSO Act was reduced to 10 years of rigorous imprisonment. The court also made
it clear that the sentences imposed under IPC and Prohibition of Child Marriage Act,
along with the sentence of fine and the default clause imposed by the trial Court on
all the appellants will remain unaltered.

93. Juvenile Offenders Are Often "Victims" Of Society: Madras High Court
Endorses Reformative Approach Under JJ Act, Quashes Detention Order

Case Title: Agavai (Name Changed) v. The State represented by Inspector of

Police

Citation: 2022 LiveLaw (Mad) 192

The Madras High Court set aside the detention order passed by the Juvenile Justice
Board, Thiruvallur against a 15 years old child in conflict with law, observing that the
order was passed in a hasty manner without going into the genuineness of the
matter.
Justice AD Jagadish Chandra also observed that a child offender should not be
given punishment based on the kind of offense he/she has committed but should be
given an individual treatment that is reformative in nature and which is based on
his/her need, psychological and social background.

The court also opined that the parents, teachers, schools, community, and law
enforcement agencies need to understand, prevent and reduce risk factors that may
push children towards adopting behaviors that may harm them. The court further
observed that no child is born criminal and it is his/her social factors that make them
do acts against the law.

94. Rigor Of S.33(5) Of POCSO Act Gets Diluted Once Victim Attains Majority:
Madras High Court Reiterates

Case Title: Sankar v. State

Citation: 2022 LiveLaw (Mad) 281

Observing that the accused must be given an opportunity to place his defence, the
Madras High court recently allowed a POCSO accused's plea for recall of the victim
for cross examination.

Justice V.Sivagnanam explained that Section 33 (5) of the Act was introduced only
to ensure that the child should not be repeatedly called to the Court for examining
as it would affect the mind of the child. In the present case, the victim was no longer
a child and had attained majority. Hence, the victim could be called for cross
examination to give a last chance to the accused to give his defence.

95. 'Grave Danger To Physical & Mental Health': Madras High Court Allows
Termination Of 13 Yrs Old Rape Victim's 28 Weeks Pregnancy

Case Title: K Vijayakumar v. State

Citation: 2022 LiveLaw (Mad) 309

Coming to the aid of a 13 years old rape victim, the Madras High Court recently
allowed termination of her 28 weeks + 3 days old pregnancy on a plea by the girl's
father.
Justice Abdul Quddhose observed that even though the pregnancy had crossed
the legal period of 20 weeks, it had to be noted that she was a small statured girl
and was not mentally or physically strong to withstand the pregnancy. Apart from
this, the court also noted that the girl's father, the Petitioner herein, was an
agricultural labourer and if the pregnancy was allowed to continue, not only the
victim girl but the whole family would suffer. The court also noted that it had wider
power under Article 226 of the Constitution than what is prescribed under section
3(2) of the Medical Termination of Pregnancy Act.

96. Evidence Of The Victim Can Be Taken To Prove Her Age In Absence Of
Necessary Documents: Madras High Court

Case Title: Azhagan @ Prabhu v. State

Citation: 2022 LiveLaw (Mad) 337

The Madras High Court recently modified a judgment of conviction under the
Protection of Children from Sexual Offences (POCSO) Act to one under the IPC
after observing that the prosecution had failed to establish the age of the victim at
the time of the offence.

Justice Bharatha Chakravarthy opined that when the prosecution had not
produced the Transfer certificate of the victim and when the victim had categorically
deposed before the court that her date of birth was 27.07.1995 not making her a
minor at the time of the offence, her evidence should be taken as her correct age
and therefore altered the charges.

97. Madras HC Voices Concern Over Rise In Sexual Exploitation Of Children,

Says Recalcitrant Attitude Of Public Must Change, Calls For Social Movement

Case Title: Narayanan v. State

Citation: 2022 LiveLaw (Mad) 370

While confirming the life imprisonment of a man convicted for sexually abusing five
children, the Madras High Court emphasized that the mere absence of physical
injury does not rule out the sexual acts.
Justice PN Prakash and Justice Hemalatha held sexual activity with a child to be
a criminal/ immoral act and emphasizing on making the society safe for children

98. Teenagers Impacted By Technology, Indulging In Sexual Offences: Madras

HC Suggests State To Formulate Counselling Mechanism For Young
Detenues

Case Title: Kanthan v State and others

Citation: 2022 LiveLaw (Mad) 390

The Madras High Court recently remarked that information technology today is
posing a great challenge in upbringing of teenagers, whose minds are often affected
by easily accessible pornography, misleading them and making them indulge in
sexual offences without understanding its consequences.

The Madurai bench of Justice J Nisha Banu and Justice N Anand

Venkatesh emphasized that whenever these teenagers are arrested, efforts should
be made to attend to their mental perversity.

99. Madras High Court Asks Schools To Frame Anti-Sexual Harassment

Policy, Provide Reporting & Redressal Mechanism To Students

Case Title: A Veronica Mary v The State of Tamil Nadu and others

Citation: 2022 LiveLaw (Mad) 487

Observing that sexual harassment in educational institutions continues to remain

inadequately addressed, the Madras High Court recently issued directions to the
State government for proper implementation of the law and policies framed against
sexual abuse of children.

The division bench of Justice R Mahadevan and Justice Sathya Narayana

Prasad directed the school education department to coordinate with the State
Commission for Protection Of Child Rights to ensure that an Internal Complaints
Committee is constituted in the schools as required under under the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013.
The court also said the schools may frame anti-sexual harassment policy and
distribute it among students and teachers. Importantly, the court said it needs to be
ensured that every schools has reporting and redressal mechanism in place.

100. Upholding Conviction In POCSO Case, Madras High Court Says It

'Eagerly Awaits' Amendment In Law For Cases Involving Teenage
Relationships

Case Title: Ravi @ Virumandi v State and another

Citation: 2022 LiveLaw (Mad) 501

Upholding the conviction and 10 years sentence of a man in a POCSO case, the
Madras High Court recently said that it is "eagerly" waiting for an amendment in the
law to appropriately deal with cases involving relationships of adolescents.

Justice P Velmurugan made the comment while upholding the conviction and
sentence of one Ravi who was accused of kidnapping and forcibly marrying a 17
year old girl in May 2014. He was convicted by the trial court under Sections 366 of
IPC, Section 5(l) of the POCSO Act and Section 3(1)(w)(i) r/w 3(2)(Va) of SC/ST Act
and sentenced to rigorous imprisonment for a period of ten years.

101. "UTP's Right To Life Doesn't Diminish Even A Wee Bit When In Jail":
Manipur HC Suspends Sentence Of POCSO Accused On Medical Grounds

Case title - Sandam Bhogen Meetei v. State of Manipur

Case Citation: 2022 LiveLaw (Man) 9

"...under-trial prisoner's right to life does not diminish even a wee bit when in jail as
an accused/convict for an offence and such person's health concerns have to be
taken care by the State and if not done so, by the judiciary," the Manipur High Court
recently observed as it released a POCSO Accused on bail on medical grounds.

The bench of Justice M. V. Muralidaran further emphasized that the right to dignity
of an accused does not dry out with the Judges, rather, it subsists beyond the prison
gates and operates until his last breath.
102. Meghalaya High Court Quashes POCSO Case Noting That Minor 'Victim'
Gave Birth To Child While Living With Accused As His Wife

Case title - Shri. Skhemborlang Suting & Anr. v. State of Meghalaya & Anr.

Citation: 2022 LiveLaw (Meg) 11

The Meghalaya High Court recently quashed FIR and criminal proceedings in a
POCSO case registered against a man as it noted that the accused man and victim-
wife were living with each other as husband and wife and out of the said union, a
child was born.

The Bench of Justice W. Diengdoh however stressed that such cases of consensual
or voluntary sexual intercourse with an underage girl by an adult man while they are
living as husband and where the wife gives birth to a child, are complex.

103. Victim's Expression "Came On Top Of Me" Must Be Construed As

'Penetrative Sexual Assault' Under POCSO Act: Meghalaya High Court

Case Title: Morningstar Nongsiej v. State of Meghalaya

Citation: 2022 LiveLaw (Meg) 12

The Meghalaya High Court has recently held that the expression "came on top of
me" must be construed as a euphemism for commission of 'penetrative sexual
assault'. A Division Bench Chief Justice Sanjib Banerjee and Justice W. Diengdoh
observed,

"The later statement of the victim recorded in course of her deposition at the trial
must be seen in the milieu of how a woman in this country, particularly a girl child,
would be intimidated in the foreign and suffocating atmosphere of a court and in the
presence of rank strangers to describe how she had been violated. The expression,
"came on top of me" must be seen to be a euphemism for the offender having
violated her in the sense of having committed penetrative sexual assault."

104. "Confession Of Accused Corroborated Victim's Version": Meghalaya HC

Upholds Man's Conviction For Raping Minor Step-Daughter
Case title - Sparding Nongbri Vs. State of Meghalaya

Case Citation: 2022 LiveLaw (Meg) 13

The Meghalaya High Court upheld the conviction of a man for raping his minor
stepdaughter as it noted that the confession of the accused as recorded in his
statement under Section 164 CrPC had completely corroborated what the victim had
to say.

With this, the Bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh also
held that if the confessional statement fills up any lacuna in the prosecution case,
the court can find the basis of conviction in such statement while relying on the
overall evidence to satisfy itself that the confessional statement was relevant.

105. Holding Hands Of A Child & Saying That They Are Beautiful Cannot Be
Considered As A 'Sexual Assault' Under POCSO Act: Meghalaya HC

Case: Mohammad Saimullah vs . State Of Meghalaya

Citation: 2022 LiveLaw (Meg) 18

The Meghalaya High Court observed that the act of holding the hands of a child and
saying that her hands are beautiful cannot be considered an act of sexual assault
under POCSO Act.

Justice W. Diengdoh referred to the relevant provisions of the POCSO Act as well
as the judgment of the Supreme Court in Attorney General of India v. Satish &
Anr and observed:

"It is to be noted that the place of occurrence is located near the residence of the
alleged victim girl. Near the place, a group of persons were playing cards and while
she was playing the petitioner asked her for a glass of water to which she complied
by bringing the said water to him. It is apparent that the place of occurrence is a
public place with a number of people present and the alleged incident happened in
broad daylight. The fact that the petitioner had held and commented on the hands
of the alleged victim girl which contact is probably of a few seconds, the same cannot
be read to imply that there is sexual intent on the part of the petitioner. At best, a
non-sexual purpose of the contact can be presumed."
106. Conduct Awareness Programme To Highlight Dangers Of Underage
Marriage/ Cohabitation: Meghalaya HC 'Requests' State Govt

Case title - Pyniarlang Kurkalang & Anr. v. State of Meghalaya & Anr. [Crl.Petn. No.
28 of 2022]

Citation: 2022 LiveLaw (Meg) 26

The Meghalaya High Court on Tuesday requested the Meghalaya State

Government to conduct an extensive awareness program to highlight the aspects of
the danger of underaged marriage or cohabitation to avoid unnecessary conflict with
the relevant provisions of law.

The bench of Justice W. Diengdoh ordered this while quashing a POCSO Case
before the Court of Special Judge, (POCSO), Shillong as it noted the accused and
the victim were living with each other as husband and wife with their baby.

107. "Injustice To Divide A Well-Knitted Family": Meghalaya HC Quashes

POCSO Charges Against Man Accused Of Having 'Consensual Sex' With
Minor Wife

Case Title: Shri. Kwantar Khongsit & Ors. v. State of Meghalaya & Ors.

Citation: 2022 LiveLaw (Meg) 28

The Meghalaya High Court, on Wednesday, quashed and set aside charges levelled
against a man under the provisions of the Protection of Children from Sexual
Offences Act, 2012 ('POCSO Act') for allegedly having 'consensual sex' with his
minor wife.

A Single Judge Bench of Justice W. Diengdoh took note of the peculiar

circumstances of the case and observed,

"…in the event it is apparent that a young couple are in a relationship where love is
the deciding factor even to the extent that it has culminated into a marriage
relationship, it may be the case that in such a relationship even if the girl involved is
legally a minor, if she has the capacity to procreate and her age is perhaps ranging
from about 16 to 17 years and more but below 18 years, it would not shock the
conscience of this Court if hypothetically speaking such a girl enters into a marriage
relationship on her own free will, as oppose to a child of about 12 or 13 years
voluntarily entering into a marriage relationship."

108. POCSO | Issue Regarding Determination Of Victim's Age Can Be Raised

At Any Stage, Even Before Appellate Forum: Meghalaya High Court

Case Title : Shri Anwar Hussain Sheikh Vs. State of Meghalaya & Anr.

Citation :2022 LiveLaw (Meg) 30

The Meghalaya High Court recently observed that it is incumbent upon the Court,
hearing a POCSO case, to be certain of the age of the victim before proceeding with
the matter.

The observation came from Justice W. Diengdoh:

"An offence against a child has to be tried by the Special Court. However, it is
incumbent upon the Court to be certain right from the inception of a case that the
case before it involves a child by the definition found in the said POCSO Act. In this
context, the age determination is very vital before further proceedings are initiated."

109. POCSO Act Not Meant To Breakdown Happy Family Relationship:

Meghalaya High Court Quashes Proceedings Against Minor's Partner

Case Title: Shri. Adelbert Marbaniang & Anr. Vs. State of Meghalaya & Ors.

Citation :2022 LiveLaw (Meg) 32

The Meghalaya High Court, while quashing a POCSO FIR against a minor's partner,
reiterated that rigors of the Act may not be applied to break down a happy family
relationship. Such cases must be decided by taking a sympathetic view towards the
accused, who is in a consensual relationship with the minor, in the instant case
almost 18 years of age.

The observation came from Justice W. Diengdoh while disposing of the plea
preferred by the POCSO accused and his child-bearing minor partner. The couple
had been living together like husband and wife.
110. "To Cut Short Relationship At This Juncture Would Not Serve Course Of
Justice": Meghalaya HC Quashes POCSO Charges Against Husband

Case Title: Shri. Jeffrey Diengdoh & Anr. v. State of Meghalaya & Ors.

Citation :2022 LiveLaw (Meg) 33

The Meghalaya High Court has quashed charges under the Protection of Children
from Sexual Offences Act, 2012 ('POCSO Act') against a husband for having
'consensual' sexual relationship with his minor wife. A Single Bench of Justice W.
Diengdoh observed,

"Notwithstanding the fact that a proper criminal proceeding cannot be cut short
without very strong and compelling circumstances which strikes at the very root of
personal liberty, particularly that of the accused, the peculiar facts and
circumstances has to bear testimony to move the hand of the court especially in
exercise of its inherent powers."

111. 'Aggravated Penetrative Sexual Assault' Under POCSO Act Doesn't

Require Deep Or Complete Penetration: Meghalaya High Court

Case title - Swill Lhuid v. State of Meghalaya & ors [Crl.A.No.17/2022]

Case citation: 2022 LiveLaw (Meg) 43

The Meghalaya High Court has observed that for the purpose of the POCSO Act,
'Aggravated Penetrative sexual assault' does not require deep or complete
penetration and even the slightest amount of penetration would constitute the
offence.

With this, the bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh
confirmed the conviction of a man under Section 5(m) of the POCSO Act who was
sentenced to 15 years of rigorous imprisonment by the trial court for committing rape
upon a 7.5-year-old girl.

112. Can't Equate Act Of Mutual Love Between Young Boyfriend-Girlfriend To

'Sexual Assault' Under POCSO Act: Meghalaya HC
Case title - Silvestar Khonglah & Anr. Vs. State of Meghalaya & Anr. [Crl. Petn. No.
45 of 2022]

Case Citation: 2022 LiveLaw (Meg) 44

While quashing POCSO charges against a minor's partner, the Meghalaya High
Court has observed that the term 'sexual assault' as per the POCSO Act cannot be
attributed to an act where there is mutual love and affection between a young couple
(boyfriend and girlfriend).

The observation came from the bench of Justice W. Diengdoh while disposing of
the plea preferred by the POCSO accused and the mother of the victim on mutual
understanding.

113. Sexual Activity With Minor Based On "Bedrock Of Love": Meghalaya High
Court Quashes POCSO Case

Case Title: Shri Manik Sunar and 2 Others v. State of Meghalaya

Citation: 2022 LiveLaw (Meg) 45

The Meghalaya High Court, while dealing with a petition filed by the petitioner-
accused charged with offences under POCSO and IPC, ordered for the quashing of
the offences on grounds that the alleged victim was in a consensual relationship
with the accused.

The Court took note of the statement of the girl who stated that the sexual
relationship was based on the bedrock of love and of the fact that the alleged victim
had in fact married the petitioner-accused upon attaining majority. The single bench
of Justice W. Diengdoh noted:

"In cases of this nature, since it is evident that the alleged aggrieved person has
indicated that she is no longer interested in pursuing with the matter and all those
who are involved are also not keen to prosecute the matter, it may perhaps be a
futile exercise for the prosecution to ensure conviction of the accused under such
circumstances."
114. Right Of Accused To Recall Witness U/S 311 CrPC Can't Always Be
Denied In Lieu Of Prosecutrix's Right U/S 33(5) POCSO Act: Orissa High Court

Case Title: Pidika Sambaru v. State of Odisha & Anr.

Citation: 2022 LiveLaw (Ori) 21

A Single Judge Bench of Justice S.K. Panigrahi has ruled that the right of an
accused to recall witnesses under Section 311 CrPC cannot be denied only
because there exists a right of prosecutrix under Section 33(5) of the Protection
of Children from Sexual Offences Act, 2012 ("POCSO Act"). The said provision
requires the Special Court to ensure that the child (prosecutrix) is not called
repeatedly to testify in the court. While allowing the revision petition, it was held that
the provisions of Section 33 laid down a general principle which must guide the trial
Court and is similar to Section 309 Cr.P.C, being in the nature of laws to ensure
speedy trial. However, by virtue of Sections 4 and 5 of Cr.P.C, Section 311
Cr.P.C shall prevail as no specific procedure is provided under POCSO Act for recall
of a witness. Section 42A of POCSO Act clarifies that the Act is not in derogation
of any other Law.

115. Patna High Court Allows Termination Of Pregnancy Of A Minor Victim Of

Sexual Abuse

Case Title : Miss K v The State of Bihar

Citation: 2022 LiveLaw (Pat) 9

The Patna high Court recently allowed termination of pregnancy of a minor victim of
sexual abuse.

Justice Anil Kumar Sinha observed that a plain reading of the provisions of the
Medical Termination of Pregnancy Act, 1971, shows that with the consent of
pregnant woman or the guardian in case of minor, the pregnancy can be terminated
by two registered Medical Practitioners, where the length of pregnancy does not
exceed 24 weeks.

116. Non-Reporting Of 'POCSO Case': "Sometimes Such Matters Aren't

Reported To Save Girl's Reputation": Rajasthan HC Suspends Sentence Of
Faculty, Hostel Warden
Case Title: Pragya Prateek Shukla and another v. State of Rajasthan, Through PP

Case Citation: 2022 LiveLaw (Raj) 15

The Rajasthan High Court suspended the sentence awarded to a Faculty Member
in the college and the Hostel Warden booked under Section 21 of the POCSO Act
(among other offences) for their alleged failure to report a 'POCSO Case' of the
hostel involving a minor girl, as it noted thus:

"Incidents are not uncommon where after deliberations, it is decided in a bonafide

manner not to report such matters to the police, lest the reputation of the girl is
tarnished. This aspect gains more importance because the hostel warden/higher-
ups would definitely have preferred to deliberate with the parents of the girl before
taking any such action."

117. Rajasthan HC Issues Guidelines For Test Identification Parade In POCSO

Cases, Orders Lower Courts For Immediate Implementation in POCSO Trials

Case Title: Suresh v. State Of Rajasthan, Through Pp

Citation: 2022 LiveLaw (Raj) 80

In a significant ruling, the Rajasthan High Court, Jaipur has issued guidelines for
Test Identification Parade (TIP) in POCSO Cases.

The court ruled that special Judges of POCSO Act cases and all the District and
Sessions Judges of the State shall ensure the immediate implementation of this
order amongst all the judicial officers and all courts in their respective jurisdiction,
which are conducting the trial of POCSO Cases

Justice Farjand Ali, while issuing the guidelines for TIP, rejected the bail
application of the accused and ordered,

"This order shall be conveyed by the Registry of this Court to all learned special
Judges of POCSO Act cases and all the District and Sessions Judges of the State,
who shall ensure the immediate implementation of this order amongst all the judicial
officers and all courts in their respective jurisdiction, which are conducting the trial
of POCSO Cases."
118. Immature Act Of Uncontrolled Emotions: Rajasthan HC Quashes POCSO
Case Against Minor's Lover

Case Title: Tarun Vaishnav v. State of Rajasthan and Another

Citation: 2022 LiveLaw (Raj) 257

The Rajasthan High Court has quashed the FIR registered against a 22-year old
man under Section 376 of the IPC and Sections 3 and 4 of the POCSO Act for
impregnating a 16-year old girl, leading to delivery of a child.

A single bench of Justice Dinesh Mehta noted that the minor and the accused were
lovers and the sexual acts were consensual in nature. It observed,

"This Court cannot and does not accord any approval or sanction to the sexual act
of petitioner with the prosecutrix but then, it is a hard reality that their love affair has
traversed beyond the legal and moral bounds, consequence whereof has begotten
a child...The mistake or blunder which otherwise constitutes an offence has been
committed due to immature act and uncontrolled emotions of two persons, out of
whom, one is still a minor."

119. Slight Penetration Without Any Visible Injury Enough To Constitute Rape
& Aggravated Penetrative Sexual Assault Under IPC & POCSO Act: Sikkim HC

Case Title: Subhash Chandra Chettri v. State of Sikkim

Citation: 2022 LiveLaw (Sik) 10

The Sikkim High Court recently held that a slight penetration without any visible
injury is enough to constitute offence of rape and aggravated penetrative sexual
assault under Sections 376 AB of the IPC as well as Section 5 of the POCSO Act.
A Division Bench of Justices Bhaskar Raj Pradhan and Meenakshi Madan Rai
noted,

"Penetration to any extent is sufficient to constitute rape under IPC and penetrative
sexual assault under the POCSO Act. The victim's deposition is specific, consistent
and clear that the appellant had inserted his penis into her vagina."
120. "Victim Suffered Catatonic Schizophrenia ; Prone To Hallucinations &
Delusions" : Sikkim High Court Acquits POCSO Accused

Case Title: Milan Kumar Rai vs State of Sikkim

Citation: 2022 LiveLaw (Sik) 13

The Sikkim High Court acquitted a man accused in a POCSO case after noticing
that the victim suffered catatonic schizophrenia and thus prone to hallucinations and
delusions.

"It would be difficult to conclude with absolute certainty that what the victim states in
her deposition is not coloured by hallucination as she was certainly suffering from
catatonic schizophrenia", the bench of Justices Meenakshi Madan Rai and Bhaskar
Raj Pradhan observed in the judgment.

121. Consensual Physical Acts Cannot Be Taken As Defense If Girl Is Below

18 Yrs Of Age: Telangana High Court Upholds POCSO Conviction

Case Title: Vanka Rajesh Raju v. The State of Telangana

Citation: 2022 LiveLaw (Tel) 67

The Telangana High Court reiterated that the defense that acts of physical
relationship was consensual between the accused and victim girl cannot be
considered where the age of the girl was below 18 years.

Stating thus, a single bench of Justice K. Surender dismissed an appeal challenging

conviction under the Protection of Children from Sexual Offences Act, 2012.

The appellant was convicted for the offence under Section 5(1) r/w 6 (punishment
for aggravated penetrative sexual assault) of the POCSO Act and Section 506
(punishment for criminal intimidation) and 376 (punishment for rape) of IPC.

122. If Age Of Victim Girl Is Suspicious & Not Proved, Benefit Of Doubt Is
Extended To Accused Under POCSO Act: Telangana High Court

Case Title: Guda Mahender v. The State of Telangana

Citation: 2022 LiveLaw (Tel) 68

Telangana High Court ruled that benefit of doubt has to be extended to the accused
under the POCSO Act, if the age of the victim girl cannot be proved by prosecution
to be below 18 years of age.

123. Margin Of Error In Determining Age By Radiological/ Ossification Test Is

Two Years On Either Side: Telangana High Court Overturns POCSO
Conviction

Case Title: Mekala Shiva v. The State of Telangana

Citation: 2022 LiveLaw (Tel) 70

the Telangana High Court overturned the POCSO conviction as the age of the victim
girl could be above 18 years of age on applying the margin of error to the age
determined by doctor on radiological/ossification examination. Justice K. Surender
relied on Jaya Mala v. Home Secretary, Government of J&K (1982), in which the
Supreme Court had observed that one can take judicial notice that the margin of
error in age ascertained by radiological examination is two years either side.
Applying the judgment regarding margin of error, if it is accepted that he victim is 16
years of age, adding two years to it, victim would be more than 18 years.

In the said circumstances, there was no conclusive proof regarding the age of victim.
Thus, the benefit of doubt was extended to the appellant as prosecution failed to
prove the age of victim girl. The appeal was allowed.

124. Touching Minor's Hand Sans Intention To Molest Won't Amount To

'Sexual Assault': Tripura HC Acquits Man Of POCSO Charges

Case title - Sanju Tanti v. The State of Tripura

Citation: 2022 LiveLaw (Tri) 10

The Tripura High Court recently acquitted a man booked and convicted under, inter
alia, Section 8 of the POCSO Act [Punishment for sexual assault] for allegedly
touching a minor's hand as the Court noted that the prosecution and the victim had
said nothing about the intention of the accused to molest.
The Bench of Justice Arindam Lodh, which was hearing an appeal filed by the
accused against the order of conviction passed by the Special Judge (POCSO),
Khowai, Tripura, observed thus:

"After careful perusal of the record it is found that the offence under Section 8 of the
POCSO Act has not been established beyond a reasonable doubt. The prosecution
witnesses including the victim has not specifically stated anything that there was any
intention of the accused to molest her. However, though she stated that the accused
had touched her hand, in this situation, in my opinion, the ingredients of Section 8
have not been fulfilled and conviction and sentence under Section 8 of the POCSO
Act stand quashed and set aside."

125. "Protector Turned Perpetrator, Acted Like 'Cunning Cat'": Orissa HC

Upholds Conviction Of Primary School Cook For Raping Hostel Inmates

Case Title: Kunjabihari Nayak v. State of Odisha

Citation: 2022 LiveLaw (Ori) 153

The Orissa High Court upheld the conviction and ensuing sentence of 12 years
rigorous imprisonment imposed upon a 'cook-cum-attendant' of a Primary School in
the district of Phulbani, who was accused of raping three inmates of the school
hostel. While expressing shock and condemnation over such an unfortunate
incident, a Single Bench of Justice Sangam Kumar Sahoo observed,

"This case gives a sorry state of affairs about the maintenance and security of the
Ladies' Hostels where minor girls belonging to Scheduled Caste and Scheduled
Tribe Community were staying. Congested room, absence of proper security
measures and poor maintenance of the hostel room came into fore while going
through the case records and evidence of witnesses. It also appears that the
Headmistress of the School and the Hostel Superintendent were not vigilant and
acted like the 'blind vulture' for which protector turned perpetrator of the crime and
acted like 'cunning cat' and spoiled the lives of the victims."

126. POCSO Act | Chargesheet Filed Without FSL Report Not Incomplete, No
Ground For Default Bail U/S 167(2) CrPC: Punjab & Haryana High Court

Case Title : Kulwinder Singh v. State of Punjab

Citation: 2022 LiveLaw (PH) 91

The Punjab and Haryana High Court, while dealing with a case registered under
provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO),
held that, for an offense of sexual assault, final report would be complete on
statement of the prosecutrix and FSL report can be used only to corroborate their
version.

The bench comprising Justice Suvir Sehgal held that based on the challan filed by
the Investigating Agency, the Court can take cognizance of the offense.

127. POCSO Act | Punjab & Haryana HC Grants Bail To Man Booked On
Allegations By Wife Regarding Incident That Took Place When She Was Minor

Case Title: Dinesh Versus State of Haryana

Citation: 2022 LiveLaw (PH) 173

The Punjab and Haryana High Court recently granted regular bail to a man booked
under the POCSO Act after the complainant, his wife, accused him of penetrative
sexual assault in an incident that allegedly took place prior to their marriage, when
she was still a minor.

The bench comprising Justice Vikas Bahl observed that no date of the alleged
incident has been mentioned in the FIR and it was registered after the petitioner
moved a plea for restitution of conjugal rights. Apart from that, the FIR was
registered after much delay.

128. [POCSO Act] Highly Improbable That Minor Who Is Sexually Abused By
Her Teacher Would Not Complain To Her Parents/ Friends: P&H High Court

Case Title: Avnish Kumar Sharma @ Avinish Versus State of Haryana

Citation: 2022 LiveLaw (PH) 225

The Punjab and Haryana High Court recently acquitted a school teacher charged
and sentenced under the POCSO Act, stating that it is highly improbable that a minor
girl who has been sexually abused by her teacher on more than one occasion would
not disclose this factum either to her parents or her teacher or any of her class
fellows.

The bench comprising Justices G.S. Sandhawalia and Vikas Suri further added
that the delay in lodging of the FIR has wiped out all the evidence and though
conviction can be based solely on victim's testimony, the same must meet the
threshold of inspiring court's confidence.

129. Can't Quash POCSO Act Offence On The Basis Of Compromise/

Matrimony Between Accused & Victim: Punjab & Haryana High Court

Case title - Nardeep Singh Cheema @ Navdeep Singh Cheema v. State of

Punjab and others [CRM-M-2270-2020]

Case Citation: 2022 LiveLaw (PH) 257

The Punjab and Haryana High Court has observed that an offence under POCSO
Act, which is a special statute, cannot be quashed on the basis of any compromise
or matrimony between the accused and the prosecutrix.

The bench of Justice Suvir Sehgal also stressed that the subsequent marriage of
the accused with the prosecutrix/victim would not dilute the offence under POCSO
Act or under Section 376, IPC.

130. "Sacred Relation Of Uncle & Niece Was Besmirched": PH High Court
Upholds Life Sentence Of Man Who Raped 12-Year-Old Niece

Case title - Chaman Lal Chimnu v. State of Haryana [CRA-D-700-DB-2010]

Citation: 2022 LiveLaw (PH) 242

The Punjab and Haryana High Court upheld the life sentence awarded to a man
who had raped his own 12-year-old niece in the year 2008. Noting that the accused
was the real uncle of the victim, the Court remarked thus:

"The factual matrix of this appeal is unfortunately related to a sordid and obnoxious
incident, where the appellant, who is the real uncle of the victim, raped his niece, a
girl child of the tender age of 12 years. The result was that the sacred relationship
of uncle and niece was besmirched. Such offenders are a menace to the civilised
society and have to be dealt with strictly as per law. It is an act, which is not only a
blow to her supreme honour and offends her self-esteem and dignity, it degrades
and humiliates the victim and where the victim is a helpless child or a minor, it leaves
behind a traumatic experience. Such crime is not only a crime against a minor
innocent child, rather it is a crime against the entire society."

131. 'Most Inhumane': Punjab & Haryana High Court Upholds Father's
Conviction For Committing Rape On 7 Yrs Old Daughter

Case Title: Roop Lal Vs. State of Punjab

Citation: 2022 LiveLaw (PH) 262

Punjab and Haryana High Court while dealing with a case of father raping minor
daughter, held that the conviction for the offence under Section 376 of IPC can be
based on the sole testimony of the rape victim.

The bench comprising Justice Sureshwar Thakur and Justice

N.S.Shekhawat further added that there can never be more graver and heinous
crime than a father committing rape on his own daughter.

132. "Child Rape Worst Form Of Lust For Sex, Nothing More Obscene,
Barbaric Than It": Punjab & Haryana High Court Dismisses Convict's Appeal

Case title - Manoj Kumar v. State of Haryana [CRA-D-825-DB-2012 (O&M)]

Case Citation: 2022 LiveLaw (PH) 266

Refusing to overturn a judgment of the trial court convicting an accused of raping

and murdering a 9-year-old girl, the Punjab and Haryana High Court recently
observed that child rape cases are the cases of the worst form of lust for sex, where
children of tender age are not even spared in the pursuit of sexual pleasure.

Stressing that there cannot be anything more obscene, diabolical, and barbaric than
this, the Court further remarked thus:
"It is a crime not only against society but against the entire humanity. Many such
cases are not brought to light because of the fact that social stigma is attached
thereto. According to some surveys, there has been a steep rise in child rape cases.
The children need more care and protection not only by the parents and guardians
but also by the Courts and society at large. In such cases, the responsibility is
equally there on the shoulders of the Court so as to provide proper legal protection
to these minor victims. Children are the natural resources of our country and are
also the country's future. In our country, a girl child is in a very vulnerable position
and one of the modes of her exploitation is rape besides other modes of sexual,
emotional, and financial abuse."

133. Right Of Accused To Cross-Examine Prosecutrix Can't Always Be Denied

Only Because Of Section 33(5), POCSO Act: Uttarakhand High Court

Case Title: Mohit v. State of Uttarakhand

Citation: 2022 LiveLaw (Utt) 12

The Uttarakhand High Court has held that recalling a child witness for cross-
examination by the accused cannot be blanketly denied only because of Section
33(5) of the Protection of Children from Sexual Offences Act, 2012 (the 'POCSO
Act'). Notably, the provision requires Special Court to ensure that the child
(prosecutrix) is not called repeatedly to testify in the Court.

While allowing an application for recall, a Division Bench of Acting-Chief Justice

Sanjaya Kumar Mishra and Justice R.C. Khulbe held,

"…it was erroneous on the part of the learned Additional Sessions Judge/FTSC to
reject the application to re-call the child witness only on the ground that Sub-Section
(5) of Section 33 of the POCSO Act provides that repeated attendance of the child
should be avoided. Moreover, an accused, who is arraigned for committing serious
offence like rape and penetrative sexual intercourse, should be given an adequate
opportunity of cross-examining the witness."

134. Uttarakhand High Court Drops POCSO Trial, Notes Victim Has Moved On
& Doesn't Intend To Pursue Prosecution

Case Title: Anees alias Anees Raza v. State of Uttarakhand

 Citation: 2022 LiveLaw (Utt) 40

The Uttarakhand High Court dropped a criminal trial under the Protection of Children
from Sexual Offences Act, 2012 after noting that the victim had moved on in life and
did not intend to prosecute the accused.

The single bench of Justice Sharad Kumar Sharma noted that although offences under
the POCSO Act and other IPC offences complained of in the criminal matter are not
compoundable under Section 320 of CrPC, however, it could not be ignorant of the fact that
both the applicant and the victim (upon attaining majority) had solemnized independent
marriages and were living happily discharging their respective matrimonial obligations.