Asaram convicted under IPC Section 376 and POCSO Act: Know all about the two laws

Asaram has been convicted under Section 376 of the Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act for raping a 16-year-old in 2013. The judgement in the case came on Wednesday and was pronounced by Judge Madhusudan inside the Jodhpur Central Jail in Rajasthan.

Below are the details of the IPC section and POCSo Act under which Asaram has been convicted.

Section 376 in The Indian Penal Code
Punishment for rape.—
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever,—
(a) being a police officer commits rape—
(i) within the limits of the police station to which he is ap­pointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s insti­tution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.—Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.—“Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected woman or children or a widows’ home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.—“Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.]

Objectives of the POCSO Act, 2012:
To protect children from the offences of –
• Sexual assault;
• Sexual harassment; and
• Pornography.
To establish Special Courts for speedy trial of such offences.

The POCSO Act, 2012 - A Comprehensive Law to Protect Children from Sexual Offences

1.0. POCSO ACT, 2012 – A COMPREHENSIVE LEGISLATIVE FRAMEWORK

POCSO is in line with Article 15(3) of the Constitution of India, which permits the State to make special provisions for children. POCSO is the acronym for ‘Protection of Children against Sexual Offences Act’ of 2012. With its enactment, India now has one of the most comprehensive law that not only allows justice for children who are victims of sexual offences but also takes into account the best interests and well-being of the child. It is a landmark legislation in the area of child protection.

In fact, before 2012, there were no specific laws in India that addressed sexual crimes against children. Sexual offences against children were booked under the Indian Penal Code (IPC). Further, many forms of sexual abuse, like showing pornography to children could not be prosecuted; unless there was penetrative sexual assault. There were no provisions that could prosecute sexual offences against boys. Journeying through the judicial system was a daunting proposition for victims and families. Intense questioning of the child victim by the defence counsel in courts and the possibility of media coverage around the case meant that there was a grave risk of the child revisiting the trauma of the incident. Victims and families experienced general fatigue with the complexity and delays of the judicial system.

Further, merely securing justice from the courts did not ensure that the victim was able to move on from the incident. Other rehabilitative and compensatory measures were lacking. The justice system itself was insensitive to the victims. Hard-line, judgmental questioning of the victim and constant demands on them to revisit and recall the crime during investigation, and trial would re-traumatize the victim child. The inordinate delays in justice delivery would disrupt the life of the child and their family. The burden of proof was solely on the victim and not on the offender.

Thus numbers of cases reported were very few compared to the scale at which the offences took place. Many of the victims in reported cases would turn hostile during the investigation and trial. Further, If the victim decided to speak out, they were left vulnerable to social stigma as there were no institutional safeguards.

1.1. Reporting of a Child Sexual Abuse case
Under Section 19 of the POCSO Act, ‘Reporting of offences’ by any person including the child has been made mandatory. Section 21 of the Act provides punishment for failure to report or record a child sexual abuse case. However, a child cannot be punished for failure to report {S.21 (2)}.

1.2. Salient Features of POCSO Act, 2012

(i) Burden of Proof on the Accused

What makes POCSO Act special is that it asks us to trust our children. Rather, it places the onus squarely on the accused to prove that he/ she is innocent. Section 29 of the Act provides that where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, unless the contrary is proved. The law ensures that the pressure is not on the child to prove that the crime took place. The Court presumes “culpable mental state” (intention, motive, etc.) of the accused [Section 30 (1)].

(ii) POCSO Act is gender-neutral law, wherein the law takes cognizance of sexual crimes committed against both girls and boys under the age of 18 years.

(iii) POCSO Act ensures punishment for all perpetrators irrespective of age and gender.

(iv) Calibration of Offences 

POCSO Act addresses a wide range of sexual offences which include anything from complete and partial penetration; non-penetrative sexual assault; stalking of a child; showing children pornography; using the child for pornography; exhibitionism etc. The law protects children from both physical and or non-physical contact forms of abuse.

(v) Severer Punishment when Protectors are Perpetrators

POCSO Act provides for more severe punishment, when the sexual offence is committed by a person in a position of trust or authority such as police officer or a member of security forces or public servant etc. (Sections 5 and 9).

(vi) Introduction of Child Friendly Measures

POCSO Act calls for people, systems and procedures to be sensitive and respond to the needs of children. For instance, it clearly mentions that the child need not be taken to the police station to report a case of sexual offence. Rather it directs the police (to be not in uniform and as far as practicable a woman officer not below the rank of Subinspector) to reach out to the child, based on the child’s preference and convenience (Section 24).

(vii) Support to the Child and Family in the form of Support Person

POCSO Act takes into account that handling a sexual offence is not easy for the child and family. So it makes provisions for experienced and professional individuals to be associated with the pre-trial and trial stage to assist the child(Sections 39 and 40). Under Rule 4 (7) of POCSO Rules, 2012, Child Welfare Committee is to appoint Support Person to render assistance to the child through the process of investigation and trial.

(viii) Accountability of every citizen towards Child Protection
POCSO Act makes it mandatory for every citizen to report cases of sexual offences against children to the police (Section 19).

(ix) Punishment for failure to report or record a case
Failing to report the commission of an offence u/s 19 (1) or u/s 20 or failing to record such offence u/s 19(2) shall be punishable u/s 21.

(x) No Discretionary Jurisdiction
Courts cannot exercise their discretionary powers in POCSO cases. They cannot reduce the term of imprisonment to a term less than the minimum term stipulated under the Act.

(xi) Confidentiality of the Child and the Family
Media has to secure the identity and privacy of the child. Disclosing or publishing the identity of the child victim by mentioning name, address, neighbourhood, school name and other particulars is punishable with imprisonment of not less than six months but extendable to one year or with fine or with both. It also prohibits making of negative reports that cause harm to the child’s reputation. Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child (Section 23).