The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
In Bombay High Court Verdict, the issue of mandatory minimum sentencing came up. The HC has acquitted a man of sexual assault charges under POCSO Act for groping a child instead of convicted him under IPC for a lesser offense.
This is what we heard in the news. The ruling had to go through large criticism for its restricted interpretation of the offence.
The Prevention of Children from Sexual Offences Act, 2012: The main intension of the act was to save children (gender neutral) from all kinds of sexual offences. The minimum sentence is three years and maximum are 5years under this act.
The man was acquitted of his charges under POCSO and was convicted under IPC which is lesser offence as the maximum sentence period under IPC is two years.
Bandu Ragde, the 39-year-old culprit was accused of taking the 12year old girl to his house on the pretext to giving her guava and pressing her breast and trying to remove her salwar.
Case was filed against the culprit under the POSCO Act. He was convict in the Session’s Court under section 8 of POCSO Act and sentenced 3 years in Jail.
The Nagpur bench of the Bombay High Court reversed the decision of the Session’s Court of convicting under POSCO and 3 years in jail. It reduced the offence character and offence character. High Court held conviction under IPC Section 354 (outraging the modesty of the women) which carries a lesser minimum sentence of one year.
Justice Pushpa Ganediwala in her judgment passed on January 19 stated that there must be a “Skin to skin contact with sexual intension without penetration” for an act be considered as sexual assault. She also said that mere groping will not be consider as an act of sexual assault.
The judgment has diluted the difference between a child and an adult which leads us to the question that then what is the use of POCSO? As the intension behind POCSO was to save children from any kind of sexual assault.
Section 7 of POCSO defines sexual assault. It states, “Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person or does any
other act with sexual intent which involves physical contact without penetration is say to commit sexual assault.”
Section 8 talks about the punishment of sexual Assault, which states, “Whoever, commits sexual assault, shall be punish with imprisonment of either description for a term which shall not be less than three years,
but which may extend to five years, and shall also be liable to fine.
Section 354 of IPC states, “Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punish with imprisonment of either description for a term which shall not be less than one year,
but which may extend to five years, and shall also be liable to fine.”
High Court reasoned that since the punishment under POCSO carried higher punishment so the conviction would
require a higher standard of proof and allegations that were more serious.
The HC also said that the “physical contact” mention in the sexual assault definition in Section 7 of the POCSO Act means “skin to skin” so the groping was done over the clothes, this indirect contact would not be consider as sexual
assault.
In most of the cases it is note that the prosecution has fail to prove his case. One of the major reasons seen was that on recording their statement under CrPC Section164, they give one version but during their testimony before
court it changed. According to a survey, in most of the cases the problem is that the allege victim has turn hostile.
Section 8 of POCSO Act carries a sentence of three to five years. Imposing the minimum sentence is mandatory if the sexual assualt is establish as define is Section 7.
In case, State of J&K v. Vijay Nanda, 2001 the Supreme Court said that the court has no option but to pass the sentence upon conviction as provided under statute, when the law in clear and unambigous. Although, if any mitigating circumstances are establish in any case, that would authorise court to pass such sentence of inprisonmen
t or fine which may be deem to be reasonable but not less than the minimum prescribed under an enactment.
Bombay High Court Verdict on The POCSO Act
Various studies have shown that mandatory sentencing has led fewer convictions. Some within the legal Fraternity had a view that the minimum sentencing in the POCSO Act is high.
Legal specialists have argued that obligatory sentences are harmful to the aim of reducing crime or acting as a deterrent. Rather than harsher penalization, they suggest judicial reform that produces the sentencing method a lot of responsibility and clarity. This could embody holding clear proceedings for sentencing, recording specific reasons for penalization in rulings, etc.
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