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Gulshan Prakash v. State of Haryana (2010) 1 SCC477

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Gulshan Prakash v. State of Haryana (2010) 1 SCC 477||Case Summary  Introduction  In this appeal, the Court has interpreted Article 15(4) of the Fundamental Right. It has been added by the 1st Amendment Act, of 1951. Facts The State of Haryana instructed Maharshi Dayanand University (MDU), Rohtak to conduct entrance examination for MD/MS/PG courses for the Session 2008-2009. The appellant made a representation to the Health Secretary for providing reservation for SC and ST in the Post Graduate courses, Since there was no response from the Health Secretary the Appellant filed a petition in the High Court.  The High Court dismissed the petition of the appellant therefore the appellant approached the Supreme Court by Special Leave Petition under Article 136. Appellant Contentions  MDU, Rohtak has provided 20% reservation for the graduate level courses or undergraduate courses therefore the said University should also provide reservation in for the PG courses.  The Government o
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Woman get 10 year punishment for Sexual assault on 4 year old minor girl in 2016

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Woman get 10 year punishment for Sexual assault on 4 year old minor girl in 2016

Delhi High Court has sentenced a woman to 10 years of rigorous imprisonment and also imposed a fine of Rs16,000 for the offence of Sexual Assault committed in 2016 under Section 6 (Aggravated Penetrative Sexual Assault) of the Protection of Children from Sexual Offences Act (POCSO) and Section 354, IPC (Assault or Criminal Force to Woman with intent to outrage her modesty).

Committing penetrative sexual assault with the minor girl by applying her mouth on the vaginal area. 

Additional Session Judge Rajat Kumar observed the heinous crime caused "immense mental trauma to the victim and her family". However, after looking at the economic condition of the family of the culprit, the Court punished him only under Section 6 of the POCSO Act, 2012 as it was higher in decree and the object and purpose of the Sentence is that the Offender should not go unpunished and justice be done to the victim and society. 


Legal Provisions (POCSO, 2012)

Introduction 

India is the second highly populated country in the world. Along with the growth of population, out of various criminal offences, sexual offences against women and children have also been rapidly increasing. To prevent these criminal offences various acts and regulations has already been introduced in our country. Yet the sexual offences against the children have not taken a halt. Thus, Indian Parliament introduced a special law for the protection of children i.e. Protection of Children from Sexual Offences Act (POCSO) and to fill the loopholes of IPC which does not prevent the male victim of a sexual offence. This Act was introduced in the year 2012 with the intention to prevent children from sexual assault, harassment, and pornography and provides for the establishment of Special Courts for the trial of such offences. 

Also read : Bilkis Bano Case। Judgment । Update

Section 6 (In the news): Punishment for aggravated penetrative Sexual Assault

  • Whoever commits
  • Aggravated Sexual Assault (defined in S.2(1)(a) of the Act)
  • Shall be punished with Rigorous punishment for a term along with a fine
    • minimum- 10 years 
    • maximum- imprisonment for life 

Aggravated Penetrative Sexual Assault

Although the word "aggravated penetrative sexual assault" has been defined under clause (a), Sub-section (1), Section 2 of the POCSO Act. Its meaning has been elaborately mentioned in the Section 5 of the Act.

Section 5 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 focuses on defining and addressing penetrative sexual assault against children. The section outlines the various circumstances under which an offense is considered to be penetrative sexual assault and the corresponding penalties for those found guilty.

According to Section 5, penetrative sexual assault occurs when a person commits any of the specified acts with a child. These acts include penetration of the vagina, anus, mouth, or any other part of the body with any part of the body or any object, or making the child to do the same with another person. The section recognizes the vulnerability of children and aims to provide comprehensive protection against heinous sexual offenses.

The acts outlined in Section 5 are categorized as severe offenses due to the nature of harm they can inflict on a child. The legislation acknowledges the need for stringent measures to deter potential offenders and safeguard the well-being of children. The penalties for penetrative sexual assault are severe, with a minimum term of rigorous imprisonment for not less than ten years, which may extend to life imprisonment. Additionally, the law emphasizes the importance of gender sensitivity during the trial proceedings to ensure that the child is not subjected to any further trauma.

In cases where the offender is a police officer, a member of the armed forces, or a public servant, the punishment is enhanced, and the minimum imprisonment term is not less than twenty years, extendable to life imprisonment. This provision underscores the commitment to holding those in positions of authority accountable for their actions and preventing abuse of power.

Section 5 also highlights the significance of recording the statement of the child promptly and in a child-friendly manner. It recognizes the need for sensitivity and ensures that the child is not subjected to unnecessary distress during the legal proceedings. The section emphasizes the use of audio-visual aids to facilitate a more comfortable environment for the child to provide their statement.

Furthermore, Section 5 establishes that penetrative sexual assault offenses are cognizable, non-bailable, and non-compoundable. This means that the police can arrest the accused without a warrant, and bail is not easily granted. The offenses are also non-compoundable, indicating that they cannot be settled through a compromise between the victim's family and the accused. This stringent approach reflects the gravity of the offenses and the commitment to ensuring justice for the victim.

In summary, Section 5 of the POCSO Act, 2012 is a pivotal provision that defines and penalizes penetrative sexual assault against children. It sets forth strict punishments for offenders, especially when those in positions of authority are involved. The section also underscores the importance of a child-friendly and sensitive approach during legal proceedings to protect the well-being of the victim. The non-bailable and non-compoundable nature of the offenses reflects the seriousness with which the legal system addresses such heinous acts, aiming to create a strong deterrent against child sexual abuse.

S.5 Aggravated penetrative sexual assault—

(a) Whoever, being a police officer, commits penetrative sexual assault on a child —
  1. (i) within the limits of the police station or premises at which he is appointed; or  
  2. (ii) in the premises of any station house, whether or not situated in the police station, to which hei s appointed; or 
  3. (iii)in the course of his duties or otherwise; or 
  4. (iv) where he is known as, or identified as, a police officer; or
(b) whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child— 
  1. (i) within the limits of the area to which the person is deployed; or 
  2. (ii) in any areas under the command of the forces or armed forces; or 
  3. (iii) in the course of his duties or otherwise; or 
  4. (iv) where the said person is known or identified as a member of the security or armed forces; or
(c) whoever being a public servant commits penetrative sexual assault on a child; or 

(d) whoever being on the management or on the staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law for the time being in force, commits penetrative sexual assault on a child, being inmate of such jail, remand home, protection home, observation home, or other place of custody or care and protection; or

(e) whoever being on the management or staff of a hospital, whether Government or private, commits penetrative sexual assault on a child in that hospital; or 

(f) whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution; or 

(g) whoever commits gang penetrative sexual assault on a child. Explanation.—When a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang penetrative sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or

(h) whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or 

(i) whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or 

(j) whoever commits penetrative sexual assault on a child, which— 
  1. (i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (l) of section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; 1***
  2. (ii) in the case of female child, makes the child pregnant as a consequence of sexual assault; 
  3. (iii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or Infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; 1*** 
  4. (iv) causes death of the child; or
(k) whoever, taking advantage of a child's mental or physical disability, commits penetrative sexual assault on the child; or 

(l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or 

(m) whoever commits penetrative sexual assault on a child below twelve years; or 

(n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or

(o) whoever being, in the ownership, or management, or staff, of any institution providing services to the child, commits penetrative sexual assault on the child; or 

(p) whoever being in a position of trust or authority of a child commits penetrative sexual assault on the child in an institution or home of the child or anywhere else; or 

(q) whoever commits penetrative sexual assault on a child knowing the child is pregnant; or 

(r) whoever commits penetrative sexual assault on a child and attempts to murder the child; or 

(s) whoever commits penetrative sexual assault on a child in the course of 1[communal or sectarian violence or during any natural calamity or in similar situations]; or 

(t) whoever commits penetrative sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or

(u) whoever commits penetrative sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated penetrative sexual assault.

S.6. Punishment for aggravated penetrative sexual assault—

  1. Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.
  2. The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.





 






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