What constitute identity of child for purpose of POCSO Act?

In the beginning of this judgment, we expressed our anguish at
the disclosure of the identity of the victim prosecutrix in the case at
hand. If reference is required in this context, the particulars of the
prosecutrix noted at the stage of recording of the evidence only need to
be seen. The objective behind the statutory command for in-camera
proceedings in such cases being the rule in terms of Section 327 Cr.
PC is to protect the victim female from secondary victimization.
123. In the context of child victim of sexual offences, the POCSO
Act explicitly so directs, by the provision contained in Section 33(7),
which reads as under :- 
―33. Procedure and powers of Special Court –
(7). The Special Court shall ensure that the identity of
the child is not disclosed at any time during the course of
investigation or trial;
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.
Explanation – For the purposes of this sub-section, the
identity of the child shall include the identity of the child‘s
family, school, relatives, neighbourhood or any other
information by which the identity of the child may be
revealed.‖

IN THE HIGH COURT OF DELHI AT NEW DELHI

Pronounced on: 9th December, 2016
 CRL.A. 538/2016
GAYA PRASAD PAL @ MUKESH 
V
STATE 
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE R.K.GAUBA
Citation: 2017 ALLMR(CRI)JOURNAL1

1. The appellant stands convicted and is aggrieved by judgment
dated 15th October, 2015 (in Sessions Case No. 163/2013) on the
charge with the gravamen of he having assaulted and committed
forcible sexual intercourse with his less-than-14 years‟ old stepdaughter
making her pregnant with his child and subjecting her to
criminal intimidation. The trial held in the court of Additional
Sessions Judge, also designated as Special Court under Section 28 of
the Protection of Children from Sexual Offences Act, 2012 
Act) for New Delhi district, had arisen out of report under Section 173
of the Code of Criminal Procedure, 1973 (Cr.P.C), submitted by
Station House Officer (SHO) of Police Station Vasant Vihar (the
police station) on 12.11.2013, upon conclusion of investigation into
first information report (FIR) No. 458/2013. The Special Court, by its
order dated 12.11.2013, upon perusal of the complaint and other
documents submitted with the said report (charge-sheet), had taken
cognizance of offences punishable under Sections 354A, 376 and 506
of Indian Penal Code, 1860 (IPC) read with Sections 4 and 5 of
POCSO Act. The trial judge by proceedings recorded on 10.01.2014
put the appellant on trial on charge for offences under Sections
354,376,506 IPC read with Section 4 of POCSO Act. On the
conclusion of trial, the impugned judgment dated 15th October, 2015
was passed holding the appellant guilty, as charged, for offences
punishable under Sections 354 and 506 IPC besides under Section 4 of
POCSO Act read with Section 376 IPC. By subsequent order dated 5th
January, 2016, separate punishments were awarded against the
appellant for offences punishable under Section 376 IPC, Section 6
POCSO Act, Section 354 IPC and Section 506 IPC. In addition, the
trial judge directed compensation to be paid specifying the amounts at
₹ 13 lakhs payable with reference to Section 33 (8) of POCSO Act
read with Rule 7 (2) of Protection of Children from Sexual Offences
Rules, 2012 (POCSO Rules) besides ₹2 lakhs recommended under
Section 357-A Cr.P.C. read with POCSO Rules.
2. By the appeal at hand, the appellant impugns not only his
conviction but also the order on sentence. 
SOME CONCERNS
3. Before we deal with the issues raised before us, lament on some
aspects of the case needs to be expressed at the very outset. On the
material placed before us it is beyond the pale of any doubt or
controversy that the victim of the offences statedly committed by the
appellant was a ‗child‘ within the meaning of the expression defined
in Section 2(1)(d) of POCSO Act, she being below the age of 18 years
at the relevant point of time. Given the nature of offences involved,
she is entitled to the protection envisaged by law in Section 33(7) of
POCSO Act. To put it simply, the special court was duty bound to
ensure that her identity was “not disclosed at any time”. As we shall
note later, this precaution was given a go-by during the proceedings
before the trial judge more than once.
4. As we shall also see elaborately in due course, the graver
offence defined by Section 5 of POCSO Act (“aggravated penetrative
sexual assault”), punishable under Section 6, though mentioned in the
order of cognizance, was forgotten when the formal charge was
framed. The order on framing charge is too cryptic to gauge the
reasons why a lesser offence under Section 4 of POCSO Act
(“penetrative sexual assault”) was preferred. The impugned judgment
was passed by another presiding officer holding the appellant guilty as
charged. But, the order on sentence was pronounced by her successor
who, for unexplained reasons, chose to mete out punishment to the
appellant for the graver offence (Section 6 of POCSO Act) for which
there was neither a charge laid nor conviction recorded. 
5. The order on sentence reveals gross confusion prevailing in the
mind of the trial judge with regard to the inter-play of various
provisions dealing with the issue of compensation in such cases as at
hand. Inexplicably, the Additional Sessions Judge passing the order on
sentence while directing the appellant to be sent to prison under the
conviction warrant also observed that he was accepting the personal
bond (“PB”) that had been furnished under Section 437A Cr. PC.
FACTS BEYOND DISPUTE
6. The substantial part of the evidence adduced by the prosecution
at the trial in support of its case against the appellant was admitted by
him in the course of his statement under Section 313 Cr.P.C., which
evidence, even otherwise being wholly reliable, deserves to be
accepted and set out at the outset as territory which is beyond dispute.
7. The victim (who we may also be referring to as “the
prosecutrix”) was born on 10.09.1999 to PW-3 (mother of the
prosecutrix) out of her first marriage that took place about 20 years
prior to the incidents which are subject matter of the case. Her first
husband (biological father of the prosecutrix) had died in an accident
when the victim was about one and half years‟ old. PW-3 entered into
her second marriage with the appellant and gave birth to a son who
was about 8 years‟ old in 2013. PW-3 with her second husband (the
appellant) and the two children, which include the prosecutrix as the
child of the first marriage and the son as the child of the second
marriage, were living together in a one room tenanted portion on the
first floor of the house of PW-1. The appellant would work for gain as
a driver while PW-3 served several households including that of PW-
4, as a maid servant to earn her livelihood. The prosecutrix was a
student of 6th standard in a government school in nearby locality
(requiring journey on foot for about half an hour).
8. On 8.10.2013, the prosecutrix was taken, with prior
appointment, by PW-4 (employer of the mother of the prosecutrix) to
the clinic of Dr. Anuradha Tuli (PW-8) in Panchsheel Park, Shivalik
Road, New Delhi, upon reference by Dr. Bithika Bhatyacharya,
Gynaecologist. PW-8 conducted ultra-sound examination and gave
report (Ex.PW-8/A) on the basis of ultra-sound film (Ex.PW-8/B) that
the prosecutrix was carrying a pregnancy of about 20 weeks and 4
days plus and minus one week four days. It may be added here that
during the investigation, after registration of the FIR by the police, the
prosecutrix was subjected to another ultra-sound examination on
18.10.2013 by Dr. Priyanka (PW-14) and Dr. Kanhaiya (PW-15) in
Safdarjung Hospital and their report (Ex.PW-14/A) confirmed that the
prosecutrix was pregnant with a child carrying a foetus assessed at that
stage to be 22 weeks and 1 day old. It further needs to be mentioned
here itself that the prosecutrix gave birth to a male child on 10.2.2014
in Deen Dayal Upadhyay Hospital, New Delhi. It is evident when the
prosecutrix gave birth to the child she herself was 14 years and 5
months old.
CASE FOR PROSECUTION
9. Since the case carries an element of delay in reporting the
subject incidents to the appropriate authorities, we would rather
narrate the facts in chronology of they having come to light.Crl. A. No.538/2016 Page 6 of 72
10. Per the versions of the prosecutrix (PW-2), her mother (PW-3)
and her mother‟s employer (PW-4), PW-3 had been working as maid
in the household of PW-4 for about 10-12 years. There has, thus, been
a long association between them wherein PW-4 grew fond of the child
(the prosecutrix). She (PW-4) is a professional, well-settled in life,
working as political scientist (consultant) and writer, her family
including her husband who is working with Indian Institute of
Technology (IIT) and a grown up son pursuing studies as a resident
scholar. She (PW-4) was well-acquainted with the prosecutrix since
she would often accompany the mother (PW-3) from the times she had
been an infant.
11. Sometime in October, 2013, per PW-3 and PW-4, the health of
PW-2 (the prosecutrix) had become a cause for worries. The mother
noted the bloating belly of the victim. She took it initially as some
“gastric” problem. Her tension and disturbed state of mind was
palpable and came to the notice of PW-4. When the mother (PW-3)
had discussed with her employer (PW-4) the worries about the health
of prosecutrix, upon she (PW-4) insisting the prosecutrix was taken
along by the mother to the employer‟s residence. Some conversation
between the employer (PW-4) and the victim (PW-2), to which we
shall advert later, aroused suspicion of the former. She arranged a
visit to the doctor and, on advice, the child victim was put to ultrasound
examination in the clinic of PW-8 on 8.10.2013 revealing the
pregnancy.
12. We must add here that the medical opinion (per PW-4) received
at the stage of revelation of pregnancy was that the foetus could not be 
aborted as it was past the time such procedure would be permissible
and thus, steps had to be taken to secure the health of the victim and
the child she was carrying to the stage of safe delivery. This part of
the testimony of PW-4 must be accepted in view of the age of the
foetus at the time of discovery of facts.
13. Coming back to the narrative, after the ultra-sound examination
conducted on 8.10.2013 in the clinic of PW-8 had revealed that the
prosecutrix was carrying a foetus, PW-4 statedly questioned her in the
course of which the prosecutrix informed her that her step father (the
appellant) was responsible for the pregnancy. She narrated events
going back to the time when the prosecutrix had just turned 11. She
spoke about the appellant having indulged in indecent assault on her
person (―chhedkhani‖) followed by a specific episode of sexual
assault that took place in the tenanted room in the afternoon of May,
2013 when her mother (PW-3) had gone away for work, taking her
younger step brother along, leaving her alone. According to PW-4,
the prosecutrix informed her in detail as to how the appellant had
accosted the prosecutrix in privacy of the tenanted room, having
bolted the door from inside, disrobed her and committed sexual
intercourse with her after disrobing himself. The prosecutrix also
expressed before PW-4 her apprehensions about the welfare of her
mother and step-brother if the step-father (appellant) were to go to jail
mentioning in this context that threats had been extended by the
appellant after the sexual assault.
14. According to the prosecution case, PW-3 (mother of the
prosecutrix) was a little unsure in the beginning as to the appropriate Crl. A. No.538/2016 Page 8 of 72
course of action. She was advised by her employer (PW-4) that, given
the facts, the case had to be reported to the police. In order to arrange
proper counseling, PW-4 contacted Ms. Ravinder Kaur (PW-16),
Head of Resilience Centre and Coordinator, „Child Line Butterflies‟, a
non-governmental organization (NGO) on 16.10.2013. PW-16, with
her colleague, went to the house of PW-4 on 17.10.2013 where they
interacted with the prosecutrix and her mother. Eventually, they were
able to persuade the mother (PW-3) to take the matter to police and,
on 18.10.2013, accompanied her (the prosecutrix) and the employer of
the mother to the police station leading to complaint (Ex.PW-2/A)
being lodged by the prosecutrix which was registered as FIR (Ex.PW-
6/A) by SI Manju (PW-6) on the basis of endorsement made by SI
Mukti (PW-10), the Investigating Officer (IO). The report (Ex.PW-
16/A) of PW-16 was submitted with request for action (vide Ex.DW-
16/B).
15. After the registration of the FIR, the prosecutrix was sent for
her medical examination to Safdarjung Hospital on 18.10.2013. The
medico legal certificate (MLC) was prepared by Dr. Jahanvi Meena
(PW-9), Senior Resident (Gynaecologist) and was proved by her at the
trial (vide Ex.PW-2/B). As mentioned earlier, medical examination
followed by ultra-sound examination confirmed the pregnancy.
Pertinent to mention here that the examining medical officer (PW-9)
had also set out the facts narrated to her by the prosecutrix at the time
of medical examination attributing the pregnancy to sexual intercourse
committed by the appellant. Crl. A. No.538/2016 Page 9 of 72
16. It is not disputed that the appellant was arrested on 18.10.2013
at 11.55 p.m. vide arrest memo (Ex. PW-10/A), after personal search
(Ex. PW-10/B) by the Investigating Officer (PW-10) in the presence
of constable Pawan (PW-11) who is a signatory to the arrest memo.
As per their evidence, the arrest was made from Munirka bus stand.
He was taken for medical examination to Sardarjung Hospital before
being formally arrested. The MLC (Ex.PW-11/A) prepared by Dr.
Arjum Ara after examination by Dr. Vikas Kumar Pandey was proved
by Dr. Pratima Anand (PW-13) who is acquainted with the
handwriting and signatures of the author who is no longer available.
As per the evidence of PW-13, the appellant was referred to forensic
medicine department for further examination. Thus, the appellant was
taken to the department of Forensic Medicine and Toxicology in All
India Institute of Medical Sciences (AIIMS) on 19.10.2013 whereupon
he was medically examined by Dr. Rajesh Kumar (PW-12) who
prepared the MLC (Ex. PW-12/A). On the basis of the said report of
medical examination, PW-12 has affirmed not only about the absence
of any indication of incapability of the appellant in engaging in sexual
intercourse but also, and more importantly, about he having preserved
biological samples including sample of the blood of the appellant in a
piece of gauze. The cross-examination of the witnesses relating to the
above mentioned investigative steps would not make any dent in the
evidence for the prosecution.
17. As noted earlier, the prosecutrix gave birth to a male child on
10.02.2014. The delivery took place in Deen Dayal Upadhyay
Hospital where the prosecutrix had been taken as per the arrangement Crl. A. No.538/2016 Page 10 of 72
worked out by the Superintendent of Children Home for Girls-IV
(Nirmal Chhaya Complex) in coordination with the local police (refer
to letter of request dated 15.01.2014 vide Ex. PW-10/H), the girl
having earlier been shifted to the said facility under directions of the
Child Welfare Committee (as per order dated 06.11.2013 vide Ex.
PW-10/J). After birth, the child was medically examined (vide MLC
Ex. PW-10/G) and samples of the blood of the prosecutrix as also her
new born child were taken and passed on to the investigating officer
(vide Ex. PW-10/F).
18. The evidence on record shows that the biological samples
(blood samples) of the prosecutrix, of her new born child and of the
appellant (besides other exhibits statedly relatable to him) were sent to
Forensic Science Laboratory (FSL) where they were examined in the
DNA Fingerprinting Unit by Ms. Anita Chhari, Senior Scientific
Officer (Biology) (PW-18). PW-18 appeared at the trial and proved
her reports (Ex. PW-10/K). The reports show that from the source of
the samples of the blood of the appellant (marked as “Ex.1”), of the
prosecutrix (marked as “Ex.5”) and that of the new born baby (marked
as Ex.6”), the DNA fingerprinting profile was generated by using
“AmpFLSTR identifiler plus kit” employing STR analysis, data being
analysed by using Genemapper ID-X software. The DNA expert
found one set of alleles from the source of Exhibit „1‟ and from the
source of Exhibit „5‟ to be “accounted” in the alleles from the source
of Exhibit „6‟ and, on that basis, concluded it to have been established
that the appellant and the prosecutrix are the biological father and
mother respectively of the baby born on 10.02.2014. The opinion Crl. A. No.538/2016 Page 11 of 72
given by the Senior Scientific Officer (Biology) of the DNA Unit of
FSL is supported by detailed alleles data derived for genotype analysis
from the three blood samples.
19. The reports indicate that besides the three blood samples, the
penile swab, control swab and the undergarment of the appellant had
also been sent to the FSL (as contained in three other parcels marked
as parcel nos.2 to 4). PW-18 was questioned and she clarified that the
said other parcels were not utilized for the purposes of DNA
fingerprinting since the blood samples were sufficient. As may be
added here, Dr. Rajesh Kumar (PW-12) during his examination had
also clarified that the purpose of penile swab to be taken was only to
ascertain if any veginal cells could be detected therein. Since it is not
a case where the appellant had been taken for medical examination
immediately after the sexual intercourse, such other biological sample
was of no utility.
FINDINGS ON FACTS
20. We have gone through the evidence of the prosecutrix
(PW-2) very carefully. She has stood by her version in the FIR (Ex.
PW-6/A) based on her complaint (Ex. PW-2/A). In May 2013, she
was a child less than 14 years‟ old, living as a step-daughter of the
appellant in the one room tenancy taken out in the house of PW-1.
Her evidence as also the explanation offered by the appellant in his
statement under Section 313 Cr. PC reveals that she had been living
as a step-daughter with the appellant and her mother (PW-3) from the
time of infancy, soon after death of her father, the mother having
entered into the second marriage. She confirmed that the appellant Crl. A. No.538/2016 Page 12 of 72
had throughout treated her as a daughter but had started making
improper advances from the time she had turned 11 (which would be
the time she was reaching puberty). Noticeably, when asked by the
defence counsel to elaborate, the prosecutrix during her crossexamination
spoke about the appellant being in the habit of touching
her breasts and private part. A girl of age of eleven is generally
endowed by nature with the capacity to make a distinction between an
affectionate parental touch and an inappropriate touch. It is the
inappropriate nature of the physical contact to which the appellant
would subject her which is described by her as “chhedkhani”.
Pertinent to mention here, this is the narration of improper advances
made by the appellant over the period as was also given by the
prosecutrix to PW-16, a representative of the NGO whose services had
been roped in by PW-4, and set out in detail in her report (Ex. PW-
16/A).
21. It is apparent from the very fact that the prosecutrix, giving
birth to a child on 10.02.2014, had been subjected to sexual
intercourse sometime around May 2013. Given the background facts,
only PW-2 would know as to who was the person, who had engaged
her in the sexual intercourse. She attributes this to the appellant
narrating the sequence of events as noted earlier. There is no reason
before us as to why we should entertain any doubts as to the
truthfulness of her account. The scientific evidence (DNA report)
nails the case against the appellant leaving no room for doubt that he,
being the biological father of the child born to PW-2 on 10.02.2014, is Crl. A. No.538/2016 Page 13 of 72
the person who had committed sexual intercourse with her in May
2013, as reported to the police on 18.10.2013.
22. Indeed, there has been a delay on the part of the PW-2 in
bringing the facts out but the delay in the present case has been
properly explained. PW-2 had lost her natural father when she was a
small child. Her mother, apparently facing financial hardships, had
been constrained to settle into a second marriage (with the appellant).
As she was growing, having entered teenage, becoming an informed
person with each passing day (also courtesy the formal education
which she was receiving) seems to have realized the importance of
dependence of the family on the appellant. It is obvious that she knew
what had happened was gross. It is also obvious that she was more
concerned about two possible consequences to follow – one, wherein
she herself might be found guilty of misconduct and, the other,
wherein the family might lose the presence and support of the
appellant (as he could go to jail). Thus, when the signs of advancing
pregnancy were becoming all too apparent and she was taken by the
unsuspecting mother (PW-3) to her employer (PW-4) and questioned
closely by the latter (PW-4), she (the prosecutrix) first responded by
saying that she had not done anything wrong. This assertion (more in
self-defence) made when she was trembling with fear (―like a leaf‖)
followed by clear expression of her fears as to the adverse
consequences befalling her mother (PW-3) and junior sibling (stepbrother)
– “meri mummy toot jaegi aur meri bhai ka kya hoga” (my
mother would be crest fallen and what would happen to my brother),
“ki agar mera papa jail jaega to meri mummy aur meri bhai ka kya Crl. A. No.538/2016 Page 14 of 72
hoga” (what would happen to my mother and brother if my father
were to go to jail) and “main sab dukh maan leti hoon par mein
mummy ko dukh mein nahi dekhna chahti” (I can take all miseries
upon myself but I cannot see my mother being in misery) – coupled
with her narration about the threats extended by the appellant to kill
her (if she were to reveal) collectively are sufficient, in our opinion, to
hold that the delay in reporting cannot result in the word of PW-2
being doubted as a doctored one.
23. Pertinent to add here that, even after the pregnancy had been
detected and PW-3 was receiving counsel and advice not only from
her employer (PW-4) but also from professionals engaged in such
services (PW-16), there was hesitation on the part of the mother in
taking recourse to legal action. She took ten days in resolving what
must have been her inner conflict before approaching the police, with
the assistance of PW-4 and PW-16. This delay, in the facts and
circumstances, also is no reason why the credibility of PW-2 should
get adversely impacted.
24. For the foregoing reasons, we find no merit in the challenge by
the appellant to the findings on facts returned by the learned trial judge
in the impugned judgment. It has been proved beyond the pale of any
doubt that the appellant had subjected the prosecutrix (PW-2), who
was living with him as his step-daughter, on several occasions from
sometime 2009 onwards to improper touch, the contact made being
with her breast and private parts and, thus, clearly with the intention,
or knowledge of likelihood, of outraging her modesty, such touch and
contact in the given facts and circumstances being use of criminal Crl. A. No.538/2016 Page 15 of 72
force. These facts constitute the offence punishable under Section 354
IPC, with which the appellant was charged.
25. Further, it has been proved that the appellant subjected the
prosecutrix (PW-2) to sexual intercourse by inserting his male organ
into her private parts (vagina) and since she was less than 14 years‟
old at that point of time, said acts constituting the offence of rape
defined in Section 375 IPC (ordinarily punishable under Section 376
IPC) and within the mischief of the offence of penetrative sexual
assault as defined in Section 3, ordinarily punishable under Section 4
of POCSO Act as included in the second head of the arraignment.
26. The evidence, we are satisfied, further proves that having
committed sexual intercourse amounting to rape (and penetrative
sexual assault), the appellant also extended threats to the prosecutrix
putting her in the fear of death if she were to reveal his conduct to
anyone. This amounts to criminal intimidation within the meaning of
the expression defined in Section 503 IPC, punishable under second
part of Section 506 IPC, thereby bringing home the third head of the
charge against the appellant.
27. We noted in the beginning of this judgment that the police, by
the charge-sheet, had sought prosecution of the appellant, inter alia,
for the offence of aggravated penetrative sexual assault, as defined in
Section 5 of POCSO Act. The special court while taking cognizance
by order dated 12.11.2013 had accepted the said prayer. As observed
earlier, cognizance having been taken also of the offence under
Section 5 of the POCSO Act, the said penal clause escaped the mind
of the learned trial judge when the question of charge came up for Crl. A. No.538/2016 Page 16 of 72
consideration. The proceedings do not reveal as to why only Section 4
of POCSO was mentioned in the second head of the charge (where
there is also reference to Section 376 IPC).
SEXUAL OFFENCES: OVERLAP BETWEEN IPC & POSCO ACT
28. The provision contained in Section 5 of POCSO Act renders the
penetrative sexual assault, as defined in Section 3, an aggravated
offence and attracting more serious punishment (as in Section 6) in
certain fact situations. For purposes of present discussion, the
situations covered by clauses (j) (ii), (n) and (p) of Section 5 are
relevant and may be noted as under :-
―Section 5 – Aggravated penetrative sexual assault –
x x x
(j). whoever commits penetrative sexual assault on a
child, which –
(i). x x x
(ii). In the case of female child, makes the child pregnant
as a consequence of sexual assault;
x x x
(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
x x x
(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
x x x
is said to commit aggravated sexual assault.”Crl. A. No.538/2016 Page 17 of 72
29. Seen against the facts which have been established, it is vivid
that the case at hand is one which involved the offence defined in law
as “aggravated penetrative sexual assault” punishable under Section 6
of POCSO Act. Clause (j)(ii) of Section 5 applies as the prosecutrix
(PW-2) became pregnant and the impugned act led to she giving birth
to a child as a consequence of the sexual assault. Since the appellant
was a relative of the victim through marriage (she being the daughter
of PW-3) from her first marriage and, thus, a step-daughter to him
and was living in the same shared household, clause (n) of Section 5
gets attracted. Given the trust that had been reposed by PW-3 in the
appellant on account of her marriage with her, it is obvious that the
appellant being the step-father was in a position of trust and authority
vis-à-vis the prosecutrix (PW-2). Thus, the penetrative sexual assault
having occurred within the confines of the home where the prosecutrix
was living with the appellant, virtually her guardian, clause (p) of
Section 5 also renders it a case of aggravated penetrative sexual
assault.
30. In above fact-situation, we are unable to comprehend as to why
the learned trial judge did not invoke Section 6, the penal clause for
punishment of aggravated penetrative sexual assault, of POCSO Act at
the time of framing of the charge. The error could have been rectified
during the trial or atleast before the judgment. This seems to have
escaped the notice even later. Thus, the conviction has been recorded
besides for other offences, only for the offence under Section 4 of
POCSO Act (read with Section 376 IPC).Crl. A. No.538/2016 Page 18 of 72
31. The Protection of Children from Sexual Offences Act (POCSO
Act) was brought on the statue book as a complete code for achieving
the object of protecting children from offences of sexual assault,
sexual harassment and pornography, though for general procedural
aspects it incorporates, inter alia, the Code of Criminal Procedure
1973 (Cr.P.C) subject, of course, to modifications with which the
latter is to be contextually read mutatis mutandis. It not only brought
on the statute book certain new offences (second to fourth chapters)
but also contains detailed provisions on the subjects of “procedure for
reporting of cases” (fifth chapter), “procedures for recording of
statement of child” (sixth Chapter), establishment of “special courts”
(seventh chapter) as indeed, and more importantly for present
discourse, on “procedure and powers of special courts and recording
of evidence” (eighth chapter).
32. There is overlap in the offences of “assault or criminal force to
woman with intent to outrage her modesty” punishable under Sections
354 IPC and of “rape” punishable under Section 376 IPC on one hand
and the offence of “sexual assault” defined in Section 7 and made
punishable under Section 8 of POCSO Act as indeed the offences of
“penetrative sexual assault” punishable under Section 4 and
“aggravated penetrative sexual assault” under Section 6 of POCSO
Act, on the other.
33. It is of interest here to compare these penal clauses. The
provisions contained in Section 354 IPC and Section 7 of POCSO Act
read as under:-
Section 354 IPCCrl. A. No.538/2016 Page 19 of 72
―Assault or criminal force to woman with intent to
outrage her modesty.—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 punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with
both‖.
Section 7 of POCSO Act
“Sexual assault: 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 said to commit
sexual assault.‖
34. The acts involving “physical contact” by touching “with
sexual intent”, the vagina or breast of a child are covered within the
mischief of the offence of “sexual assault” defined in Section 7 of the
POCSO Act. These very acts, under the general criminal law, have all
along been treated as assault or use of criminal force (as the case may
be) against a woman (which expression denotes, per Section 10
Cr.P.C., “a female human being of any age”) from which the intention
to outrage, or knowledge of likelihood of thereby outraging, her
modesty may be drawn so as to attract the penal provision under
Section 354 IPC.
35. The POCSO Act came into force with effect from 14.11.2012.
The provision contained in Section 354 IPC was amended by Criminal
Law (Amendment) Act, 2013 (Act 13 of 2013) brought into force with
effect from 3.2.2013. Prior to the said amendment, the offence under Crl. A. No.538/2016 Page 20 of 72
Section 354 IPC attracted punishment of imprisonment of either
description for a term which could extend to two years, or with fine, or
with both. Under the amended law, the offence under Section 354 IPC
(committed on or after 3.2.2013) may be visited with punishment of
either description which shall not be less than one year but may extend
to five years, and with fine. In contrast, the offence of “sexual
assault” punishable under Section 8 of POCSO Act attracts the
punishment of imprisonment of either description for a term which
cannot be less than three years but which may extend to five years and
with fine.
36. The provisions contained in Section 375 IPC (as amended w.e.f.
03.02.2013) and Section 3 of POCSO Act run as under:
Section 375 IPC
―Rape- A man is said to commit "rape" if he-—
(a) penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a woman or makes her to do so
with him or any other person; or
(b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or
anus of a woman or makes her to do so with him or any
other person; or
(c) manipulates any part of the body of a woman so as
to cause penetration into the vagina, urethra, anus or any
part of body of such woman or makes her to do so with
him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other
person, under the circumstances falling under any of the
following seven descriptions:—
First.—Against her will. Crl. A. No.538/2016 Page 21 of 72
Secondly.—Without her consent.
Thirdly.—With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he
is not her husband and that her consent is given because
she believes that he is another man to whom she is or
believes herself to be lawfully married.
Fifthly.—With her consent when, at the time of giving
such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or
through another of any stupefying or unwholesome
substance, she is unable to understand the nature and
consequences of that to which she gives consent.
Sixthly.—With or without her consent, when she is under
eighteen years of age.
Seventhly.—When she is unable to communicate consent.
Explanation I.—For the purposes of this section,
"vagina" shall also include labia majora.
Explanation 2.—Consent means an unequivocal
voluntary agreement when the woman by words, gestures
or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific
sexual act:
Provided that a woman who does not physically resist to
the act of penetration shall not by the reason only of that
fact, be regarded as consenting to the sexual activity.
Exception I.—A medical procedure or intervention shall
not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man
with his own wife, the wife not being under fifteen years
of age, is not rape.‖.Crl. A. No.538/2016 Page 22 of 72
―Section 3 of POCSO Act
3. Penetrative sexual assault.- A person is said to commit
"penetrative sexual assault" if-
(a). he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or makes the
child to do so with him or any other person; or
(b). he inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or
anus of the child or makes the child to do so with him or
any other person; or
(c). he manipulates any part of the body of the child so
as to cause penetration into the vagina, urethra, anus or
any part of body of the child or makes the child to do so
with him or any other person; or
(d). he applies his mouth to the penis, vagina, anus,
urethra of the child or makes the child to do so to such
person or any other person.‖
37. Prior to the amendment of the penal code with effect from
3.2.2013 by Act 13 of 2013, the offence of “rape” was defined by
Section 375 IPC in terms, generally speaking, essentially requiring it
to be proved that the accused had engaged in sexual intercourse with a
woman against her will or without her consent, vaginal penetration by
the male organ being always held to be necessary to constitute sexual
intercourse. The amendment of 2013 has enlarged and expanded the
definition of “rape”. For present discussion, however, suffice it to
note that vaginal penetration by the male organ continues to constitute
the offence of rape provided the other ingredients are also satisfied
which include absence of consent or it being against the will of the Crl. A. No.538/2016 Page 23 of 72
woman. Noticeably, the issue of consent would not arise, in view of
sixth clause, in case the victim woman is less than 18 years of age (the
earlier requirement being 16 years of age). These very acts constitute
the offence of “penetrative sexual assault” defined by Section 3 of
POCSO Act which was enacted with the object of protecting “children
from offences of sexual assaults” etc. The acts which amount to
“rape” (S.375 IPC) or those amounting to “penetrative sexual assault”
(S.3 POCSO Act) are now described in phraseology which is almost
identical – the words “woman” and “her” in former having been
replaced by words “child” and “the child”, and the word “penis”
having been added to the body parts covered by the last clause, in the
latter.
38. To put it simply, what is defined by law as “rape” (Section 375
IPC) may also constitute “penetrative sexual assault” (Section 3
POCSO Act) in case of a child. Conversely put, acts constituting the
offence of “penetrative sexual assault” against a girl child would also
amount to rape. The prime distinction between the two offences is
that “penetrative sexual assault”, an offence under the special law
(POCSO Act), is gender-neutral and for it the victim must be a child
(person less than 18 years of age) while the offence of “rape” under
general law (IPC) must be against a woman irrespective of her age.
Since the issue of consent does not arise in case of offence against a
child, the definition in POCSO Act omits any reference to it.
39. The first exception to Section 375 IPC (rape) regarding
“medical procedure or intervention” being excluded is covered by
similar exclusion in Section 41 POCSO Act concerning all “medical Crl. A. No.538/2016 Page 24 of 72
examination of medical treatment” taken with consent of parents or
guardian of the child. We may add, in passing, that the second
exception to Section 375 IPC concerns issues of marital rape which do
not arise in the present case.
40. An examination of the punishment prescribed by the law for the
offences involved is required to be undertaken at this stage. Before
the amendment of 2013, the offence of “rape” was ordinarily
punishable, in terms of Section 376 (1) IPC, with imprisonment of
either description for a term which could not be less than seven years,
but which may be for life or for a term which may extend to ten years,
though discretion was left to the court, under the proviso to the said
sub-section, to impose a sentence of imprisonment for a term of less
than seven years if adequate and special reasons existed for taking
such lenient view. Sub-section (2) of Section 376, as it stood before
the amendment of 2013, also prescribed the punishment in certain
aggravated forms of offence of rape which do not have much
relevance for the present discussion.
41. Section 376 IPC, as amended with effect from 3.2.2013, to the
extent germane, reads as under:-
―376. Punishment for rape
(1). Whoever, except in the cases provided for in subsection

(2). commits rape, shall be punished with rigorous
imprisonment of either description for a term which shall
not he less than seven years, but which may extend to
imprisonment for life, and shall also be liable to fine.
(2). Whoever,—Crl. A. No.538/2016 Page 25 of 72
xxx xxx xxx
(f). being a relative, guardian or teacher of, or a
person in a position of trust or authority towards the
woman, commits rape on such woman; or
xxx xxx xxx
(i). commits rape on a woman when she is under
sixteen years of age; or
(k). being in a position of control or dominance over a
woman, commits rape on such woman; or
xxx xxx xxx
…… shall be punished with rigorous imprisonment for a
term which shall not be less than ten years, but which
may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural
life, and shall also be liable to fine‖
(Emphasis supplied)
42. We must add here that the Act 13 of 2013 whereby IPC was
amended, added four new penal provisions (Section 376-A to 376-D)
which deal with aggravated form of the offence of rape. In present
case, we need not dwell on the said other cognate clauses.
43. The POCSO Act contains parallel provisions for dealing with
punishments for the offences of “penetrative sexual assault” (Section 4
POCSO Act) and its aggravated form (Section 6 POCSO Act). For
comparison, we may extract the said two penal clauses hereunder:-
―4. Punishment for penetrative sexual assault.-Crl. A. No.538/2016 Page 26 of 72
Whoever commits penetrative sexual assault shall be
punished with imprisonment of either description for a
term which shall not be less than seven years but which
may extend to imprisonment for life, and shall also be
liable to fine.
6. Punishment for aggravated penetrative sexual assault:
Whoever, commits aggravated penetrative sexual assault,
shall be punished with rigorous imprisonment for a term
which shall not be less than ten years but which may
extend to imprisonment for life and shall also be liable to
fine‖. (Emphasis supplied)
44. In terms of Section 28(1) POCSO Act, a “court of sessions” is
notified and designated as ―special court to try the offences under the
Act‖ for the concerned district. Sub-section (2) of Section 28 clarifies
that such special court, while trying an offence under the POCSO Act,
shall also “try” any other offence (i.e. other than under POCSO Act)
with which the accused may be charged at the same trial under the
Code of Criminal Procedure, 1973 (Cr.P.C) which, in terms of Section
31, applies to proceedings before such special court ―save as
otherwise provided (in this Act)‖. The departure from the general
criminal procedure may be sampled by referring to Section 33(1)
whereunder a special court under the POCSO Act, unlike the court of
sessions dealing with general penal law offences, ―may take
cognizance of any offence, without the accused being committed to it
for trial‖.
45. In the context of overlap of offences and the issues that arise
here, it is essential to take note of some of the relevant provisions on
the subject of “charge” as contained in the seventeenth Chapter of
Cr.P.C. Section 218 requires a separate charge to be framed for Crl. A. No.538/2016 Page 27 of 72
“every distinct offence”. Section 211 requires every charge to “state
the offence with which the accused is charged” it being described in
the charge by the “specific name” given to the offence by the law
which creates it, with reference to the law and the statutory provision
against which it is alleged to have been committed. Section 212 (1)
Cr.P.C. mandates that the charge must contain “such particulars as to
the time and place of the alleged offence, and the person (if any)
against whom‖ it was committed as is ―reasonably sufficient to give
the accused notice of the matter with which he is charged”.
46. Section 214 Cr.P.C. clarifies that the “words used in describing
the offence” in every charge shall be “deemed‖ to have been used in
sense attached to them respectively by the law. Though the general
rule in Section 218 (1) is that each separate charge for every distinct
offence is “(to) be tried separately” the law creates exceptions “three
offences of the same kind within the space of twelve months” being one
such exception envisaged in Section 219 (1). Interestingly, Section
219 (2) clarifies that “offences are of the same kind” when they are
punishable with the same amount of punishment under the same
section of IPC or of any special or local law. This, of course, cannot
be treated as exhaustive meaning of the expression “offences of the
same kind” since the nature of the offence may also render certain
offences to fall in the category of “cognate” or “of same kind”. The
sexual offences with which we are dealing in the matter at hand
provide a ready illustration on the subject. Crl. A. No.538/2016 Page 28 of 72
47. We must also refer here to Section 220 Cr.P.C. which permits a
common trial for more than one offence in certain fact-situations. The
provision, to the extent relevant, reads as under:-
“220. Trial for more than one offence.
(1) If, in one series of acts so connected together as to
form the same transaction, more offences than one are
committed by the same person, he may be charged with,
and tried at one trial for, every such offence.
Xxx xxxx xxxx
(3) If the acts alleged constitute an offence falling within
two or more separate definitions of any law in force for
the time being by which offences are defined or punished,
the person accused of them may be charged with, and
tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would
by itself or themselves constitute an offence, constitute
when combined a different offence, the person accused of
them may be charged with, and tried at one trial for the
offence constituted by such acts when combined, and for
any offence constituted by any one, or more, of such acts.
(5) Nothing contained in this section shall affect section
71 of the Indian Penal Code (45 of 1860).‖
48. The third and fourth sub-sections of Section 220 Cr.P.C. quoted
above are of special interest here. As demonstrated by the preceding
discussion, the acts of commission constituting the offence under
Section 354 IPC may also amount to offence under Section 8 of
POCSO Act. Similarly, the offence of “penetrative sexual assault”
under the POCSO Act would also constitute the offence of rape if the
victim is a female human being. In such fact-situation, it is legitimate
for the accused to be charged with and tried at one trial both for the Crl. A. No.538/2016 Page 29 of 72
offence under Section 354 IPC and also under Section 8 of POCSO
Act.
49. Further, the preceding discussion has brought to the fore that
out of the two offences (which are the subject matter here) of the
POCSO Act, the one of “sexual assault” is the lesser one, the acts
covered thereunder being also essential part of the gravamen of the
charge to be framed for the graver offence (of penetrative sexual
assault). Apparently, the offence of “aggravated penetrative sexual
assault” includes within it the offence of “penetrative sexual assault”,
the former being treated as graver than the latter for the additional
fact-situations (inclusive of abuse of authority or fiduciary relationship
etc.). Thus, it is permissible, in terms of Section 220 (4) Cr.P.C. for
separate charge to be framed not only for the offence of “aggravated
penetrative sexual assault” but also for “penetrative sexual assault”
and “sexual assault” as indeed for the offences of “rape” and “assault
or criminal force to outrage the modesty of the woman”, against an
accused at one trial. Section 221 (1) Cr.P.C. guides the criminal courts
that in case of doubt, it is proper that the accused is charged “in the
alternative” with having committed some one of the several offences
which may be proved by bringing home the allegations concerning a
single or a series of acts.
50. The above-noted provisions of the procedural criminal law are
ordinarily subject to three riders; first, as indicated by Section 220 (5)
quoted above (referring to Section 71 IPC), second, under Section 222
Cr.P.C and, the third, more apt for present context, under section 42 of
POCSO Act, which we consider hereafter.Crl. A. No.538/2016 Page 30 of 72
51. Section 71 IPC provides as under:
―Section 71 - Limit of punishment of offence made up of
several offences
Where anything which is an offence is made up of parts,
any of which parts is itself an offence, the offender shall
not be punished with the punishment of more than one of
such his offences, unless it be so expressly provided.
Where anything is an offence falling within two or more
separate definitions of any law in force for the time being
by which offences are defined or punished, or
where several acts, of which one or more than one would
by itself or themselves constitute an offence, constitute,
when combined, a different offence,
the offender shall not be punished with a more severe
punishment than the Court which tries him could award
for any one of such offences. (emphasis supplied)
52. Section 222 Cr.P.C. reads as under:
“222. When offence proved included in offence charged.
(1) When a person is charged with an offence consisting
of several particulars, a combination of some only of
which constitutes a complete minor offence, and such
combination is proved, but the remaining particulars are
not proved, he may be convicted of the minor offence
though he was not charged with it.
(2) When a person is charged with an offence and facts
are proved which reduce it to a minor offence, he may be
convicted of the minor offence, although he is not
charged with it.
(3) When a person is charged with an offence, he may be
convicted of an attempt to commit such offence although
the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a
conviction of any minor offence where the conditions Crl. A. No.538/2016 Page 31 of 72
requisite for the initiation of proceedings in respect of
that minor offence have not been satisfied.
(emphasis supplied)
53. Section 42 of POCSO Act runs thus :
―42. Alternative punishment : Where an act or omission
constitutes an offence punishable under this Act and also
under section 166A, 354A, 354B, 354C, 354D, 370, 370A,
375, 376, 376A, 376C, 376D, 376E or section 509 of the
Indian Penal Code, then, not with standing anything
contained in any law for the time being in force, the
offender found guilty of such offence shall be liable to
punishment under this Act or under the Indian Penal
Code as provides for punishment which is greater in
degree.‖ (emphasis supplied)
54. A conjoint reading of the above statutory provisions makes it
clear that though the acts committed leading to the offence of
“penetrative sexual assault” include some acts which by themselves
may amount to the lesser offence of “sexual assault” – and in some
cases even the offence of “sexual harassment” (Section 11 of POCSO
Act), if they were committed in the course of some transaction, the
offender may not be punished for ―more than one of (his) such
offences‖. Further, if all the facts alleged against the accused on
arraignment for the charge for the graver offence are not proved and
the facts which are proved reduce it to a “minor offence”, the accused
may be convicted for such minor offence though he was not separately
charged with it.
55. A good illustration is of case where charge for the offence of
“aggravated penetrative sexual assault” is framed but the
circumstances requisite for such “aggravated” form of the offence are Crl. A. No.538/2016 Page 32 of 72
not proved, the accused can still be punished for the lesser offence of
“penetrative sexual assault”. Similarly, though an accused is charged
with the offence of “rape” if sexual intercourse is not proved, he can
still be held guilty and convicted for the offence of attempt to rape or
even the lesser offence of assault for outraging the modesty of the
woman.
56. Yet another illustration, more germane to the discussion
required to follow in the case, would be of a case where there has been
penetrative sexual assault by the offender against a female human
being who appears, on the basis of material available at the threshold,
to be less than 18 years‟ old. In such case, it would be permissible, in
terms, inter alia, of Section 220 (3) and Section 221(1) Cr.P.C. to put
the accused on trial on the charge for offences both under Section 4
POCSO Act (or its aggravated form, if so made out) and under Section
376 IPC. If the acts alleged to have been committed by the accused
are proved at the trial and if it is also established that the victim was a
female human being less than 18 years in age on the relevant date, the
accused would be liable to be convicted and punished for the offence
under the POCSO Act. Conversely, if the victim were to be found to
be more than 18 years‟ in age, provided the absence of her consent is
also proved, the accused may be punished instead on the charge of
“rape” under Section 376 IPC. But, if the ingredients of both the
offences (penetrative sexual assault under POCSO Act and rape under
IPC) are brought home, the law would not permit the convicted person
to be punished for both the offences. The acts committed by him
being common, he can be punished only for one of such offences;Crl. A. No.538/2016 Page 33 of 72
ideally, for the one graver out of the two, provided there was a charge
properly framed in such regard.
57. Using the present case as an illustration, the acts constituting the
offence of “aggravated penetrative sexual assault” (as defined in
POCSO Act) or of “rape” (as defined in IPC) were statedly committed
by the appellant in May, 2013. In this view, the provisions contained
in Sections 375 and 376 IPC amended with effect from 3.2.2013
would also apply. Given the facts that the appellant is a relative (step
father), he was in a position of trust and authority vis-à-vis the
prosecutrix having control and dominance over her, in particular as
she was under 16 years‟ of age and living under the same roof with
him, the case would also attract the prescription of punishment in
terms of Section 376 (2) (f), (i) and (k) IPC. This is the spirit of the
provision contained in Section 42 POCSO Act which expects the court
to invoke the offence attracting graver punishment.
58. Law confers sentencing discretion on courts which is to be
carefully exercised taking on board all relevant factors. One of the
central factors which must be considered is the gravity of the offences.
How must this be assessed? Some indication is found in the statutory
scheme. The expression “minor offence” as has been used in law,
illustratively in Section 222 Cr.P.C. quoted above, is to be understood
with reference to not only the gravity of the consequences that flow
for the victim but also the degree of punishment with which the law
expects it to be dealt with. To put it simply, higher the prescription of
punishment, the graver the offence. To put it other way round, if the Crl. A. No.538/2016 Page 34 of 72
offence attracts punishment lesser in degree to another cognate
offence, the former is “minor offence” in its relation.
ERRORS IN CHARGES: EFFECT
59. We find in the present case that if the acts of assault or use of
criminal force actuated by the intent to outrage the modesty of the
prosecutrix (as committed during period anterior to the forced sexual
intercourse) were to be dealt with as an offence under Section 354 IPC
committed before 03.02.2013, the imprisonment (of either description)
that may be awarded may not exceed two years and may or may not be
accompanied by levy of fine. In contrast, if the incriminating acts
constitute this offence had been committed also after the amendment
of IPC by Act 13 of 2013 (w.e.f. 03.02.2013), by virtue of the said
amendment of 2013, the punishment is to be in the form of
imprisonment of either description which cannot be less than one year
but which may extend to five years, and with fine. On the other hand,
if the same acts were to be dealt with as a case of sexual assault
punishable under Section 8 of the POCSO Act, the punishment would
have to be in the form of imprisonment of either description for a term
which shall not be less than three years but which extend to five years,
accompanied by fine.
60. It needs to be examined as to how the learned trial judge has
proceeded in the present case. The first head of the charge framed on
10.01.2014 by the trial court reads as under:-
―That sometimes in the year 2009 to 5-6
th October, 2013 at
Delhi you being the step father of the prosecutrix X aged
about 15 years (the name and details of which are
mentioned in the charge sheet) had molested her and Crl. A. No.538/2016 Page 35 of 72
thereby you committed an offence punishable u/s 354 of
IPC and within my cognizance;‖ (emphasis supplied)
61. We express our dis-satisfaction with the language employed in
framing the above-noted charge. We also record our disapproval for
use of expression “molested” in the charge. The penal provision
contained in Section 354 IPC, as noted above, pertains to an offence
which is described in law as “assault or criminal force to woman with
intent to outrage her modesty”. As noted earlier, Section 211 (2)
Cr.P.C. mandates that “if the law which creates the offence gives it
any specific name, the offence may be described in the charge by that
name only”.
62. We are conscious that, in general parlance, the word “molest”
(of which the word “molested” is the past tense) is also understood to
convey “sexual assault or abuse”. But, as the following definition of
the expression (see Shorter Oxford English Dictionary 6
th edition,
page No. 1817) would show, it includes possibility of its use in the
context of non-sexual harassment as well and does not invariably
connote assault or use of criminal force against a woman with intent to
outrage her modesty:
―1. Cause trouble to; vex, annoy, inconvenience.
2. Interfere or meddle with (a person or (formerly) a thing)
harmfully or with hostile intent. xxx Sexually assault or
abuse (a person, esp. A woman or child)‖
63. We may also note here the provision contained in Section 215
Cr.P.C. which deals with the effect of errors in framing the charge.
Even a bare reading of the provision makes it abundantly clear that for
an error in charge to be treated as “material” so as to vitiate the Crl. A. No.538/2016 Page 36 of 72
judicial proceedings, it must be showed that the accused was thereby
misled and this has “occasioned a failure of justice”.
64. Having gone through the record of the trial court in entirety, we
are satisfied that the loose language used by the trial court in framing
the charge under the first head did not mislead the appellant. The
allegations constituting the offence under Section 354 IPC (which was
duly mentioned in the said charge) were part of the material which
was shared with the appellant at the very inception in terms of Section
207 Cr.P.C. The acts attributed to the appellant constituting the said
offence (shown committed repeatedly on several occasions over a
prolonged period ever since the prosecutrix turned 11) are set out at
length not only in the complaint forming the basis of the FIR but also
in her statement under Section 164 Cr.P.C. as indeed reported to the
elders and the representatives of the NGO whose services were
engaged. The evidence led in this context is consistent with the case
originally set up and was put to the appellant at the stage of his
statement under Section 313 Cr.P.C. seeking his explanation.
Therefore, no failure of justice can be suggested to have been
occasioned by the improper use of the expression “molested” in the
formal charge under the first head.
65. As already observed by us, the acts of commission attributed to
the appellant in the charge-sheet and as shown (proved) by the
evidence adduced at the trial also render it a case of “sexual assault”
punishable under Section 8 of POCSO Act. Given the fact that these
acts are noted in the afore-quoted charge to have continued till
October, 2013, it was incumbent on the learned trial judge to consider Crl. A. No.538/2016 Page 37 of 72
including the offence under Section 8 of POCSO Act in the charge. If
the trial court was in doubt as to whether such offence under POCSO
Act had been committed or not, a separate charge “in the alternative”
could still have been framed in terms of the provision contained in
Section 221 (1) Cr.P.C. There was no consideration of this aspect at
any stage. Undoubtedly, the offence under Section 8 of POCSO Act
is a graver offence as compared to the offence under Section 354 IPC
(even after amendment of 2013) for the reason the law provides
imprisonment for three years in the minimum for the former.
66. For reasons we cannot fathom, relatively minor offence under
Section 354 IPC was invoked. It is too late in the day for the omission
to be rectified. It is trite that without formal charge under Section 8
POCSO Act being framed, the punishment under the said law cannot
be awarded. Since no charge under Section 8 POCSO Act was laid,
the appellant will get away with the conviction for the lesser crime
(Section 354 IPC) having been proved.
67. We record regret that no charge was framed for the graver
offence under Section 8 of POCSO Act.
68. The second head of the charge for which the appellant was put
on trial by the learned trial court, by order dated 10.01.2014, was
framed in the following terms:
―Secondly, on 1st May, 2013 at house no. 331, Village
Munirka, New Delhi you had committed penetrative
sexual assault upon the prosecutrix X aged about 15
years (the name and details of which are mentioned in the
charge sheet) and thereby you committed an offence
punishable u/S 4 of POCSO Act r/w section 376 IPC and
within my cognizance;‖ (emphasis supplied)Crl. A. No.538/2016 Page 38 of 72
69. Again, the manner in which the charge has been framed leaves
much to be desired. As noted at the outset, the circumstances which
would render it a case of “aggravated penetrative sexual assault”
within the meaning of the provision contained in Section 5 of the
POCSO Act have not been mentioned. The learned trial judge, thus,
restricted the charge to the offence punishable under Section 4 of the
POCSO Act.
70. But then, the second head of the charge is in continuation of the
first charge wherein it was duly indicated that the appellant stood in
the capacity of “step father” vis-a-vis the prosecutrix, a minor child.
Though, ideally, the offence under Section 376 IPC should have
formed the subject matter of a separate “alternative” charge, the way it
is projected in the charge framed it can still be treated as a charge “in
the alternative” though, of course, subject to the caution that
punishment cannot be meted out both for the POCSO offence and the
IPC offence thereby constituted.
71. Picking up the ingredients, requisite to bring home charge for
the offence of rape from the formal charges framed, it is vivid that the
appellant had been put to notice that he was also being tried for the
offence of rape punishable under Section 376 IPC on the allegations
that in May, 2013, in House No. 331, Village Munirka, New Delhi he
(as the step father) of the prosecutrix had subjected her to penetrative
sexual assault at a stage when she was a person less than 18 years in
age. This would render it a case duly covered by the penal provision Crl. A. No.538/2016 Page 39 of 72
contained in clauses (f), (i) and (k) of sub-section (2) of Section 376.
Since a charge under Section 376 IPC was framed, it being a graver
offence vis-a-vis the corresponding offence under POCSO Act, the
error (or omission) in the context of the charge relatable to the latter
would be inconsequential as, again, it did not mislead the appellant in
any which way nor is shown in any manner to have occasioned a
failure of justice within the mischief of Section 215 Cr.P.C. In the
given fact-situation, the failure on the part of the learned trial judge in
invoking offence under Section 6 of POCSO Act (aggravated
penetrative sexual assault) at the stage of framing of the charge will
not come in the way of recording conviction under Section 376 (2) (f),
(i) and (k) IPC.
ON PUNISHMENT
72. The learned trial judge passing the order on sentence on
05.01.2016 imposed the following punishment for offence under
Section 354 IPC:
―(3a) Convict is directed to undergo rigorous
imprisonment for the period of 5 years for offence
u/Sec. 354 IPC and
(3b) Convict is further directed to pay fine of
Rs.10,000/- in default of payment of fine simple
imprisonment of 3 months‖.
73. Since the punishment is in accord with the punishment
prescribed for the offence under Section 354 IPC as amended with
effect from 03.02.2013 and given the background facts wherein this
offence was followed by penetrative sexual assault by a step father
against the prosecutrix (also amounting to rape) we do not see any Crl. A. No.538/2016 Page 40 of 72
reason to interfere with the order to the extent of punishment awarded
for offence under Section 354 IPC. We, however, reserve, for later
part of this judgment, our decision on the question as to how the
sentences for different offences are to run.
74. The learned trial judge who passed the order on sentence, to our
mind, has unfortunately exceeded his jurisdiction in a manner which
cannot be countenanced. The punishment awarded in the context of
the second head of charge by him in the impugned order on
05.01.2016 is in the following terms:-
―(1a) Convict is directed to undergo rigorous
imprisonment for life for offence u/sec. 376 IPC and
(1b) Convict is further directed to pay fine of Rs.
50,000/-. In default of payment of fine simple
imprisonment of 3 months for offence u/sec. 376 IPC.
(2a) Convict is directed to undergo rigorous
imprisonment for life for offence u/sec. 6 of the
Protection of Children From Sexual Offences Act,
2012. AND
(2b) Convict is further directed to pay fine of Rs.
50,000/-. In default of payment of fine simple
imprisonment of 3 months.‖
75. Since the appellant was neither put to trial nor was held guilty
nor convicted for the offence under Section 6 of the POCSO Act, it
was wholly impermissible – rather, it was illegal – for punishment for
such offence to be also awarded.
76. The learned trial judge also seems to have overlooked the basic
precept of criminal law that a person may not be punished twice over Crl. A. No.538/2016 Page 41 of 72
for the same set of acts of commission or omission which collectively
constitute an offence covered by two different provisions of law.
Though the law permits trial on alternative charge to be held for both
the offences, the punishment may be awarded only for one of them,
the one which is graver in nature. Section 71 IPC, quoted earlier,
concludes with the command that the offender shall not be punished
with a more severe punishment than the court which tries him could
award for any one of such offences. The charge under the
corresponding provision of POCSO Act (Section 4) on which the
appellant has been found guilty is in addition to his conviction for the
offence under Section 376 IPC. Since the circumstances attendant on
the acts committed by the appellant attract Section 376(2) IPC, the
punishment under the corresponding (alternative) offence under
Section 4 of POCSO Act 2002 would be rendered lesser in degree in
as much as, unlike the latter provision, the former – 376(2) IPC –
prescribes punishment which may extend to “imprisonment for life”
which shall mean imprisonment for the remainder of such person‟s
“natural life” and “shall also be liable to fine”. In these facts and
circumstances, Section 42 of POCSO Act would kick in and the court
is duty bound to punish the offender for the offence under Section
376(2)(f)(i) and (k) of IPC; which is greater in degree in comparison to
the offence under Section 4 of POCSO Act.
77. The learned counsel representing the appellant urged that the
severity of the punishment for rape be reduced to imprisonment for a
specified term instead of imprisonment for life. He placed reliance on
a judgment of the Supreme Court reported as Bhavanbhai Bhayabhai Crl. A. No.538/2016 Page 42 of 72
Panella Vs. State of Gujarat, (2015) 11 SCC 566 and another of a
division bench of this court reported as Lokesh Mishra Vs. State of
NCT of Delhi, (2014) SCC Online Del 1106. We find that the view
taken in both cases cited at bar has to be restricted to the factual matrix
of the respective cases and cannot be adopted as the general rule. The
case at hand presents a sordid scenario where the trust and confidence
reposed in him by his wife and step-daughter was abused by the
appellant to bring about, out of sheer lust, untold miseries on the body,
mind and psyche of the prosecutrix child leaving scars which would
not ever heal. Thus, we see no scope for any ruth in the matter of
punishment.
78. We, thus, set aside the direction of the trial court awarding
punishment under Section 6 of POCSO Act. In the given facts and
circumstances, we uphold the award of imprisonment for life for the
offence with fine of ₹50,000/- (and the default sentence) as imposed
by the trial court for the offence under Section 376 IPC clarifying that
in the case at hand the conviction having been recorded with reference
to clauses (f)(i) and (k) of sub-Section (2) of Section 376, “the
imprisonment for life” shall mean, be construed and enforced as
imprisonment for the remainder of the appellant‟s “natural life”. We
are conscious that this was not explicitly stated by the trial judge in the
impugned order on sentence dated 05.01.2016. But, given the facts
and circumstances of the case noted at length above, the observations
we make in above regard are only to clarify the position of legislative
command for the authorities which are to administer the punishment
awarded to the appellant under Section 376(2) of IPC to bear in mind.Crl. A. No.538/2016 Page 43 of 72
79. The trial court deemed it proper to award rigorous imprisonment
for a period of 7 years for the offence under Section 506 (IInd part)
IPC. Given the factual matrix of the case, we do not find any cause
for reduction of the said sentence.
80. On the subject of punishment, there is one more issue required
to be addressed. After awarding various sentences for the different
offences on which the trial court convicted the appellant, it added the
following directions / observations :-
“…Benefit u/sec. 427 Cr. PC is given to convict for
the offence u/sec. 376 IPC and Sec. 6 POCSO Act. No
benefit u/sec. 354 IPC and Sec. 506 IPC is given to
convict and these sentences shall run successively…”
81. We are pained to observe here that the learned Judge passing the
order on sentence did not notice that Section 427 Cr. PC deals with
situations (“sentence on offender already sentenced for another
offence”) which do not even arise in the case at hand. We have not
found even a shred of allegation or proof that the appellant had been
prosecuted, found guilty, convicted, or sentenced to imprisonment in
any case prior to the one at hand. It was conceded at bar by the
learned additional public prosecutor that there is no past criminal
record of the appellant. There was, thus, no occasion for assuming
that the appellant was “already undergoing a sentence of
imprisonment” or “imprisonment for life” so as to attract the provision
contained in Section 427 Cr. PC. The conviction for more than one
offence in the same trial could not have been treated as “subsequent
conviction”. Crl. A. No.538/2016 Page 44 of 72
82. The second sentence in the above-quoted part of the impugned
order indicates that what was on the mind of the trial judge was the
need to regulate or set off the period of detention already undergone
by the appellant against the sentences awarded. This should have
attracted his attention to the provision contained in Section 428 Cr. PC
which reads as under :
―Section 428 - Period of detention undergone by the
accused to be set off against the sentence of imprisonment
Where an accused person has, on conviction, been
sentenced to imprisonment for a term [not being
imprisonment in default of payment of fine,] the period of
detention, if any, undergone by him during the
investigation, inquiry or trial of the same case and before
the date of such conviction shall be set off against the term
of imprisonment imposed on him on such conviction, and
the liability of such person to undergo imprisonment on
such conviction shall be restricted to the remainder, if any,
of the term of imprisonment imposed on him.
Provided that in cases referred to in section 433A, such
period of detention shall be set off against the period of
fourteen years referred to in that section.‖
83. It seems incongruent that the benefit of “set off” was granted in
the context of award of imprisonment for life but declined in the case
of other two offences where imprisonment for different terms have
been imposed. We do not approve of the expression “shall run
successively” as has been used by the trial judge in the order on
sentence. The courts are expected to use clear and unambiguous
language rather than loose expressions. It is, though, clear that the
learned judge meant to convey “shall run consecutively”, in contrast to Crl. A. No.538/2016 Page 45 of 72
the possible direction that the sentences “shall run concurrently”.
Even if the direction of the trial judge is thus understood, there is an
added difficulty in enforcing it in that it is not clarified as to
punishment for which offence runs first and which would be
consecutive or is to follow.
84. Whilst it is true that the law gives the discretion to the criminal
court to direct the sentences for different offences on which conviction
has been recorded in the same trial against the same accused, to run
concurrently or consecutively (Section 31 Cr. PC), it has to be borne in
mind that “imprisonment for life”, as is one of the sentence awarded
here, has all along been understood to mean and construed as
imprisonment for “the full and complete span of life”. [Ashok Kumar
@ Golu Vs. Union of India, (1991) 3 SCC 498].
85. In a decision of Constitution Bench of the Supreme Court of
India reported as Muthuramalingam and Ors. Vs. State rep. by
Inspector of Police, 2016 SCC Online SC 713, the question of law
addressed was as to whether consecutive life sentences can be awarded
to a convict on being found guilty of a series of murders for which he
had been tried in a single trial. The court answered the question in the
negative and held that while the sentences for imprisonment for life
can be awarded for multiple murders or other offences punishable for
imprisonment for life, the life sentence so awarded cannot be directed
to run consecutively. It was observed that such sentence would be
“superimposed over each other so that any remand or commutation Crl. A. No.538/2016 Page 46 of 72
granted by the competent authority in one does not ipso facto result in
remission of the sentence awarded to the prisoner for the other”.
86. After answering the above noted question of law, the
Constitution Bench in Muthuramalingam (supra) also dealt with
another dimension involving the question “as to whether the court can
direct life sentence and terms sentences to run concurrently”. The
question was answered thus :-
―32. …The Trial Court‘s direction affirmed by the
High Court is that the said term sentences shall run
consecutively. It was contended on behalf of the
appellants that even this part of the direction is not
legally sound for once the prisoner is sentenced to
undergo imprisonment for life, the term sentence awarded
to him must run concurrently. We do not, however, think
so. The power of the Court to direct the order in which
sentences will run is unquestionable in view of the
language employed in Section 31 of the Cr. P.C. The
Court can, therefore, legitimately direct that the prisoner
shall first undergo the term sentence before the
commencement of his life sentence. Such a direction
shall be perfectly legitimate and in tune with Section 31.
The converse however may not be true for if the Court
directs the life sentence to start first it would necessarily
imply that the term sentence would run concurrently.
That is because once the prisoner spends his life in jail,
there is no question of his undergoing any further
sentence. ….‖
87. Since we have clarified above that the sentence of imprisonment
for life awarded to the appellant for the offence under Section 376(2)
IPC shall mean and be enforced as imprisonment for the remainder of Crl. A. No.538/2016 Page 47 of 72
his natural life, the question of directing any of the sentences to run
consecutively is rendered redundant.
ON COMPENSATION
88. We cannot drop curtain on the matter with observations on the
quantum of punishment. The learned trial court while passing the
order on sentence on 05.01.2016, after spelling out the punishment it
was awarding, further directed as under :-
―COMPENSATION U/SEC. 7 POCSO RULES, 2012
Section 33(8) of POCSO Act, 2012 provides that in
appropriate cases, compensation may be prescribed to
the child.
Rule 7(2) of POCSO Rules, 2012 further provides that
special court may on its own award compensation
when the accused is convicted.
Now in this case, it is one of the most demanding
circumstances, in which the heinous offence is
committed by the convict on his daughter and made
her pregnant resulting a birth of child. Now there are
two victims of crime i.e. the child and the baby born
out of said offence.
So, in these circumstances, the case demands a
compensation which is not only with respect to the loss
suffered but also injury /aftermath as a result of crime.
In these circumstances, it is directed that a
compensation of ₹13 Lacs is awarded to the victim. It
is further directed that out of ₹13 lacs, ₹12 lacs shall
be deposited in bank account and thereby be converted
into FDR long term account, in the name of infant
child, and the principal shall not be realized till the
child attains majority. It is further directed that the Crl. A. No.538/2016 Page 48 of 72
interest accumulated on the said FDR account shall be
deposited in a separate bank saving account and the
victim / her guardian is at liberty to utilize said amount
for the welfare of the child.
Considering the fact that the child born to the victim is
minor. Victim herself is minor. In these
circumstances, the mother of the victim may apply to
get appointed as guardian or may apply to the bank for
opening the accounts of both minors, if their rules
permit.
Out of ₹13 lacs, victim is awarded ₹1 lac on account
of the loss suffered by victim.
COMPENSATION U/SEC. 7(3 AND 4) OF POCSO
RULES, 2012 AND SEC. 357(A) CR. P.C.
In the present case, the victim is minor and is
dependent for her necessary expenses.
Considering the young age of the prosecutrix,
the mental trauma that she have undergone, she needs
financial support. It is recommended that she be given
a compensation of ₹2 lacs. A copy of this order be
also sent to the prosecutrix and to Delhi State Legal
Services Authority, for disbursement of compensation
and a copy be also supplied to the complainant and the
complainant may also approach DLSA for
disbursement of compensation..‖
89. There are primarily two provisions of the Code of Criminal
Procedure, 1973 (Cr. PC) dealing with the question of compensation
which would be of relevance at this stage of the proceedings, they
being Sections 357 and 357A. The former provision, to the extent
relevant, reads as under:-
―357. Order to pay compensation -Crl. A. No.538/2016 Page 49 of 72
(1) When a Court imposes a sentence of fine or a sentence
(including a sentence of death) of which fine forms a part,
the Court may, when passing judgment, order the whole or
any part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the
prosecution;
(b) in the payment to any person of compensation for any
loss or injury caused by the offence, when compensation is,
in the opinion of the Court, recoverable by such person in
a Civil Court;
x x x x x
(2) If the fine is imposed in a case which is subject to
appeal, no such payment shall be made before the period
allowed for presenting the appeal has elapsed, or, if an
appeal be presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does
not form a part, the Court may, when passing judgment,
order the accused person to pay, by way of compensation,
such amount as may be specified in the order to the person
who has suffered any loss or injury by reason of the act for
which the accused person has been so sentenced.
(4) An order under this section may also be made by an
Appellate Court or by the High Court or Court of Session
when exercising its powers of revision.
(5) At the time of awarding compensation in any
subsequent civil suit relating to the same matter, the Court
shall take into account any sum paid or recovered as
compensation under this section.‖
90. Section 357(1) permits the amount of fine imposed and realized
to be applied, inter alia, for payment of compensation to the victim for
any “loss or injury” caused by the offence in all such cases where
compensation may be claimed by bringing an action in the civil court. Crl. A. No.538/2016 Page 50 of 72
91. As noted above, the learned trial judge while directing the
appellant to undergo imprisonment for various terms has also imposed
fine of ₹10,000/- for the offence under Section 354 IPC and
Rs.50,000/- for offence under Section 376 IPC but did not consider as
to whether the said amounts of fine may be released as compensation
for the loss or injury suffered by the prosecutrix on account of the
offences to which she was subjected to.
92. In the case reported as Ankush Shivaji Gaikwad Vs. State of
Maharashtra, (2013) 6 SCC 770, the question of award of
compensation to be paid by the convict (appellant) to the bereaved
family of the victim of the offence under Section 304 (part II) IPC had
arisen and the Supreme Court, after taking note of the jurisprudence
that has evolved against the backdrop of the provision contained in
Section 357 Cr. PC, concluded thus :
―66.…While the award or refusal of compensation in a
particular case may be within the court‘s discretion,
there exists a mandatory duty on the court to apply its
mind to the question in every criminal case. Application
of mind to the question is best disclosed by recording
reasons for awarding / refusing compensation. It is
axiomatic that for any exercise involving application of
mind, the Court ought to have the necessary material
which it would evaluate to arrive at a fair and reasonable
conclusion. It is also beyond dispute that the occasion to
consider the question of award of compensation would
logically arise only after the court records a conviction of
the accused. Capacity of the accused to pay which
constitutes an important aspect of any order under
Section 357 Cr. PC would involve a certain enquiry albeit
summary unless of course the facts as emerging in the
course of the trial are so clear that the court considers it Crl. A. No.538/2016 Page 51 of 72
unnecessary to do so. Such an enquiry can precede an
order on sentence to enable the court to take a view, both
on the question of sentence and compensation that it may
in its wisdom decide to award to the victim or his / her
family.‖
93. Though it must be noted that the learned trial judge did bear in
mind its duty to consider the grant of compensation in the case at
hand, unfortunately it restricted itself to the provision contained in
Section 357 A Cr. PC and the corresponding provision contained in
the POCSO Act and the rules framed thereunder.
94. Given the difficulties in enforcement in entirety of the above
extracted directions about the compensation ordered to be paid by the
learned trial judge, which we shall discuss at some length a little later,
we are of the view that the amount of fine thus imposed for the above
said two offences also must be directed to be released, upon
realization, to the prosecutrix in terms of Section 357(1)(b) Cr. PC.
The needs of the prosecutrix for recompense and rehabilitation must
take precedence over all other considerations.
95. The learned trial judge has referred to Section 357A Cr. PC
besides Section 33(8) of the POCSO Act read with Rule 7 of the
POCSO Rules. The provision of law in Code of Criminal Procedure
may be extracted hereunder :-
―Section 357A – Victim Compensation Scheme –
(1) Every State Government in co-ordination with the
Central Government shall prepare a scheme for providing
funds for the purpose of compensation to the victim or hisCrl. A. No.538/2016 Page 52 of 72
dependents who have suffered loss or injury as a result of
the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for
compensation, the District Legal Service Authority or the
State Legal Service Authority, as the case may be, shall
decide the quantum of compensation to be awarded under
the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is
satisfied, that the compensation awarded under section 357
is not adequate for such rehabilitation, or where the cases
end in acquittal or discharge and the victim has to be
rehabilitated, it may make recommendation for
compensation.
(4) Where the offender is not traced or identified, but the
victim is identified, and where no trial takes place, the
victim or his dependents may make an application to the
State or the District Legal Services Authority for award of
compensation.
(5) On receipt of such recommendations or on the
application under sub-section (4), the State or the District
Legal Services Authority shall, after due enquiry award
adequate compensation by completing the enquiry within
two months.
(6) The State or the District Legal Services Authority, as
the case may be, to alleviate the suffering of the victim,
may order for immediate first-aid facility or medical
benefits to be made available free of cost on the certificate
of the police officer not below the rank of the officer in
charge of the police station or a Magistrate of the area
concerned, or any other interim relief as the appropriate
authority deems fit.‖
(emphasis supplied)Crl. A. No.538/2016 Page 53 of 72
96. We may also extract the relevant POCSO provision which
specifically permits direction for payment of compensation ―in
addition to fine‖ and reads thus:
―Section 33 - Procedure and powers of Special Court
x x x
(8). In appropriate cases, the Special Court may, in
addition to the punishment, direct payment of such
compensation as may be prescribed to the child for any
physical or mental trauma caused to him or for immediate
rehabilitation of such child.‖ (emphasis supplied)
97. In addition and apart from S. 357 Cr.P.C. directing payment of
compensation by the individual accused, S. 357A is the legislature‟s
recognition of the responsibility of the State to compensate victims as
well as dependants of victims of crime who have suffered loss or
injury as a result of the crime and need rehabilitation.
98. Having regard to the letter and spirit of the provision contained
in Section 357A Cr. PC it is clear that the court is to make a
recommendation for compensation to be paid in terms of the Victim
Compensation Scheme to be prepared and notified by the Government,
the responsibility to decide and arrange for the release of the
compensation having been placed at the door of the legal service
authorities. Section 357A (3) Cr. PC makes it clear that recourse to
the Victim Compensation Scheme can be taken even if compensation
has been ordered to be paid in terms of Section 357 Cr. PC. Section 33
(8) of POSCO Act also makes it explicit that the compensation Crl. A. No.538/2016 Page 54 of 72
ordered is in addition to the punishment which would include the
sentence of fine.
99. We also extract hereunder the relevant rule 7 under the POCSO
Rules which reads as follows:-
Rule 7 of POCSO Rules – (1). The Special Court may,
in appropriate cases, on its own or on an application
filed by or on behalf of the child, pass an order for
interim compensation to meet the immediate needs of
the child for relief or rehabilitation at any stage after
registration of the First Information Report such
interim compensation paid to the child shall be
adjusted against the final compensation, if any.
(2). The Special Court may, on its own or on an
application filed by or on behalf of the victim,
recommend the award of compensation where the
accused is convicted, or where the case ends in
acquittal or discharge, or the accused is not traced or
identified, and in the opinion of the Special Court the
child has suffered loss or injury as a result of that
offence.
(3). Where the Special Court, under sub-section (8)
of Section 33 of the Act read with sub-sections (2) and
(3) of section 357A of the Code of Criminal Procedure,
makes a direction for the award of compensation to the
victim, it shall take into account all relevant factors
relating to the loss or injury caused to the victim,
including the following:-
(i). type of abuse, gravity of the offence and the
severity of the mental or physical harm or injury
suffered by the child;
(ii). the expenditure incurred or likely to be incurred
on his medical treatment for physical and / or mental
health;Crl. A. No.538/2016 Page 55 of 72
(iii). loss of educational opportunity as a consequence
of the offence, including absence from school due to
mental trauma, bodily injury, medical treatment,
investigation and trial of the offence, or any other
reason;
(iv). loss of employment as a result of the offence,
including absence from place of employment due to
mental trauma, bodily injury, medical treatment,
investigation and trial of the offence, or any other
reason;
(v). the relationship of the child to the offender, if
any;
(vi). whether the abuse was a single isolated
incidence or whether the abuse took place over a
period of time;
(vii). whether the child became pregnant as a result of
the offence;
(viii). whether the child contracted a sexually
transmitted disease (STD) as a result of the offence;
(ix). whether the child contracted human
immunodeficiency virus (HIV) as a result of the
offence;
(x). any disability suffered by the child as a result of
the offence;
(xi). financial condition of the child against whom the
offence has been committed so as to determine his need
for rehabilitation;
(xii). any other factor that the Special Court may
consider to be relevant.
(4). The compensation awarded by the Special Court
is to be paid by the State Government from the Victims
Compensation Fund or other scheme or fund
established by it for the purposes of compensating and Crl. A. No.538/2016 Page 56 of 72
rehabilitating victims under section 357A of the Code
of Criminal Procedure or any other laws for the time
being in force, or, where such fund or scheme does not
exist, by the State Government.
(5). The State Government shall pay the
compensation ordered by the Special Court within 30
days of receipt of such order.
(6). Nothing in these rules shall prevent a child or his
parent or guardian or any other person in whom the
child has trust and confidence from submitting an
application for seeking relief under any other rules or
scheme of the Central Government or State
Government.‖
(emphasis supplied)
100. Therefore, in a case as the present one where the prosecutrix, a
young child less than 14 years‟ in age, was rendered pregnant by her
own step-father (appellant) by forced penetrative sexual assault
(constituting the offence of rape), the said pregnancy having led to
delivery of a child in due course, the amount of compensation of
₹60,000/- (as ordered by us to be paid upon the amount of fine of
equivalent value being realized in terms of the above directions) would
hardly be adequate for her appropriate or full rehabilitation. In these
circumstances, there can be no doubt that the case of the prosecutrix
deserves to be considered for purposes of suitable compensation under
the Victim Compensation Scheme notified under Section 357A Cr. PC
on account of the inadequacy of the compensation awarded under
Section 357 Cr. PC.
101. The enabling provision contained in Section 33(8) of the
POCSO Act only reiterates the expectation from the court in terms of Crl. A. No.538/2016 Page 57 of 72
Section 357A Cr. PC discussed earlier; though, it must be added, it
restricts the considerations by stating that compensation which can be
ordered by the Special Court under the POCSO Act to be paid to the
victim child is “for any physical or mental trauma‖ or “for immediate
rehabilitation” of such child. Noticeably, the statutory direction is that
the compensation shall be ordered to be paid in the appropriate cases
by the court “as may be prescribed”. This required the authorities
vested with the responsibility for putting in position subordinate
legislation (Central Government in terms of Section 45 POCSO Act
and State Government under Section 357 A Cr.P.C.) to “prescribe”
parameters and method for calculation of the amount of compensation
in cases of varied nature.
102. In the name of prescription within the meaning of the clause
contained in Section 33(8) of the POCSO Act, however, the Central
Government has included Rule 7 in the POCSO Rules notified and
brought into force with effect from 14.11.2012, as extracted earlier.
Sub-Rule (3) of Rule 7 indicates the factors which are to be taken into
account by the court in determining the appropriate award of
compensation to the victim child, they including considerations of the
type of abuse, gravity of offence, severity of mental or physical harm
or injury, the expenditure incurred or likely to be incurred for restoring
the physical or mental health, loss of engagement in gainful activity,
etc. Noticeably, the abuse of the close relationship of the child to the
offender; the fact as to whether the sexual abuse was a protracted one
and further, more importantly, as to whether the offence resulted in
pregnancy leading to a live birth would be integral & essential part of Crl. A. No.538/2016 Page 58 of 72
the consideration of the “expenditure incurred or likely to be incurred
for restoring the physical or mental health, as well as loss of
engagement in gainful activity” are to be borne in mind. But, these
guidelines are general in nature and do not assist much in quantifying
the amount of compensation. The POCSO Rules make no provision
for a child born out of the sexual violence or the offence suffered by
the child, who is not only a dependant of the victim, but the direct
victim of the offence.
103. While there can be no quarrel with the proposition that the
factors set out in Rule 7(3) of the POCSO Rules are of utmost and
crucial import, the difficulty with the guidance provided by the rules
stems from the fact that sub-rule (4) of rule 7 of the POCSO Rules
refers one back to the Victim Compensation Fund and the Victim
Compensation Scheme prepared and enforced by the Government in
terms of Section 357A Cr. PC. This clause renders Section 33(8) of
the POCSO Act nothing but reiteration of what was already on the
statute book in the form and shape of Sections 357 and 357A Cr. PC.
We are informed that the Government of National Capital Territory of
Delhi by Notification F.No.11/35/2010/HP II dated 02.02.2012 issued
and published by Home (Police-II) Department, had brought into force
a scheme under Section 357A Cr. PC for purposes of the National
Capital Territory of Delhi called “Delhi Victims Compensation
Scheme, 2011 (“Delhi Scheme of 2011”). We are also informed that
the Government of National Capital Territory of Delhi is yet to
establish the Victim Compensation Fund to fulfill the obligations in
terms of its own scheme (Delhi Scheme of 2011); this inspite of the Crl. A. No.538/2016 Page 59 of 72
nudge given by this Court through a series of order passed in a public
interest litigation bearing WP(C) No.7927/2012, Court on its own
motion vs. Union of India & Ors.. The Delhi Scheme of 2011 does not
take into account the afore-noticed special consideration for victim of
an offence under POCSO Act. The legislative command in Section
33(8) POCSO Act for the compensation payable to the child who
suffered the sexual offence to be “prescribed” does not find resonance
in the subordinate legislation notified in terms of the power to make
rules under Section 45 or in the Victim Compensation Scheme
enforced under Section 357 A Cr.P.C. We also find that the Scheme
does not make any provision for one who is born from the rape of the
child and would be covered under the definition of both “victim” as
well as “dependent on the victim.”
104. Seen against the above position of law on the subject, we are of
the opinion that the learned trial judge has erred while dealing with the
issue of compensation in the case at hand. It appears that he
considered it permissible, and wrongly so, for compensation to be
ordered by directing an amount to be paid separately under Section
33(8) of the POCSO Act read with Rule 7(2) of the POCSO Rules, on
one hand, and by award of another amount under Section 357 A Cr.
PC read with rules 7(3) and (4) of POCSO Rules, on the other. SubRule
(2) of Rule 7 of the POCSO Rules is to be read with Section
33(8) of the POCSO Act. Sub-Rules (3) and (4) of Rule 7 only
provide the guidance for enforcing what can be recommended as the
award of compensation under sub-Rule (2) of Rule 7, read with
Section 33(8). In terms of sub-Rule (4) of Rule 7, the obligation to Crl. A. No.538/2016 Page 60 of 72
pay the amount eventually ordered is the responsibility of the State
Government by appropriate drawal from the Victim Compensation
Fund (if, as and when) notified under Section 357A Cr. PC. Thus,
separate awards of ₹13 Lakhs and ₹2 Lakhs ordered to be paid as
compensation by the trial judge are not correct application of the law.
105. Besides the above, there are other difficulties with the
dispensation ordered by the trial court on the question of
compensation. Though it ordered ₹13 Lakhs to be paid as
compensation to the victim under Section 33(8) of the POCSO Act
read with Rule 7(2) of the POCSO Rules, there is nothing indicated in
the proceedings recorded or the order passed as to on which basis the
said figure had been computed. The amount seems to have been
picked up by the learned trial judge just from the air. There was
absolutely no inquiry to gather the necessary material or evaluate to
reach a reasonable conclusion. This is not a correct approach to adopt.
Having ordered such amount of money to be paid as compensation and
from out of the said amount ₹12 Lakhs to be kept apart in fixed
deposit for the benefit of the child born to the prosecutrix on account
of the pregnancy resulting from the offence of rape, the trial judge
directed the case file to be consigned to the record room. There is no
arrangement made in the impugned order as to who would be
responsible for recovery of the said amount of money and / or by what
mode. If the intent was for the amount of such compensation to be
realized from the appellant, there is no inquiry or consideration as to
whether the appellant had the capacity or resources to pay such an
amount of money as compensation. Crl. A. No.538/2016 Page 61 of 72
106. It is well settled that the amount ordered to be paid as
compensation in a criminal case may be realized as fine. [see
K.A.Abbas H.S.A. vs. Sabu Joseph (2010) 6 SCC 230]. Further, the
default in payment of the amount of compensation may also be visited
by imprisonment in default. [see R. Mohan vs. A.K. Vijaya Kumar
(2012) 8 SCC 721].
107. Under the criminal jurisprudence, the trial court is also the
executing court. It is its obligation to take all directions it lawfully
passes to the logical conclusion subject, of course, to the modification
or inhibition, if any, ordered by the appellate or revisional courts.
For such purposes, it must keep its proceedings open and not generally
expect, as seems to be the case here, an “execution” application to be
moved.
108. The direction for payment of ₹13 Lakhs as compensation in the
first part of the order on the subject quoted earlier, in the given facts
and circumstances, turns out to be merely a promise on paper –
nothing more and nothing less – no arrangement having been made for
its enforcement. This dispensation, being unreasoned, must resultantly
be vacated and we hereby so order.
109. No inquiry regarding means of the offender or ability to
compensate has been held and so meaningful order for enhancing fine
to be paid to victim under S. 357(1) Cr.P.C. is not possible. No order
directing offender to pay compensation under Section 33(8) of
POCSO to child victim is also possible on the record in the present
case. The consideration of an award of compensation under section Crl. A. No.538/2016 Page 62 of 72
33(8) of POCSO has to be confined, therefore, to the Scheme under
rule 7(4) of the POCSO Rules.
110. In the above facts and circumstances, the road to award an
appropriate amount of compensation to the victim in the case at hand,
in terms of the provisions contained in the POCSO Act and the rules
framed thereunder, leads us eventually to search for remedy in the
Victim Compensation Scheme and Victim Compensation Fund under
Section 357A Cr. PC. Though we are informed that the Delhi State
Legal Services Authority (DSLSA) has taken certain steps in
conjunction with the concerned authorities in the Government of
National Capital Territory of Delhi to improve upon the Delhi Scheme
of 2011 (in which context the draft of Delhi Victims Compensation
Scheme, 2015 seems to be presently under consideration), the
compensation in the case at hand has to be considered and granted
within the constraints of the existing scheme of 2011.
111. As noted earlier, the learned trial court has recommended, under
the Delhi scheme of 2011, an amount of ₹ 2 Lakhs to be paid to be
prosecutrix as compensation by DSLSA, it being the “minimum
limit”. We notice that in the case of loss or injury arising out of the
offence of rape, the maximum amount of compensation that can be
recommended to be paid by the legal services authority under the said
Delhi Scheme of 2011 is ₹3 Lakhs. We find no reasons set out in the
order of the learned trial judge as to why he opted for the minimum
amount of ₹2 Lakhs to be paid under the said scheme. Since we are
vacating the directions of the trial judge for the amount of ₹13 Lakhs Crl. A. No.538/2016 Page 63 of 72
to be paid as compensation separately (out of which ₹1 Lakh was to
go to the victim prosecutrix), there is an added reason why the
compensation ordered under Section 357A Cr. PC be enhanced.
112. As noticed above, the Delhi Victims Compensation Scheme
2011 was notified by the Government of NCT of Delhi on 02.02.2012.
The Protection of Children from Sexual Offences Act, 2012 came into
force on 14.11.2012. Obviously, the said special law having come on
the statute book subsequently, there was no provision made in the said
scheme for the child victims of sexual offences. The Protection of
Children from Sexual Offences Rules, 2012 were simultaneously
prepared and notified by the Central Government so as to be brought
into force on 14.11.2012.
113. As noted above, Delhi State Legal Services Authority has
initiated certain steps to improve upon the Delhi Scheme of 2011.
From the draft of Delhi Victims Compensation Scheme 2015, which
was shown to us, we find that the concerns of child victims are
proposed to be addressed by permitting the compensation amount to
be “increased by upto 50% more than specified”. For the offence of
rape, the upper limit of compensation is proposed to be enhanced to
₹5 Lakhs. Thus, it is expected that once the draft scheme of 2015 is
finally accepted and enforced, the compensation in such cases as at
hand for the offence of rape may be awardable, in case of child
victims, to the extent of ₹7.5 Lakhs.
114. We find that there is a complete vacuum in the consideration of
compensation so far as the sexual offence resulting in the birth of a Crl. A. No.538/2016 Page 64 of 72
child. Such a child is clearly a victim of the act of the offender and
entitled to compensation independent of the amount of compensation
paid to his/her mother. Such award would require to include amount
towards his/her maintenance and support.
115. The fact, however, remains that the Delhi Scheme of 2011, as
presently in force, does not actually take care of the responsibility of
the State in terms of Section 33(8) of the POCSO Act read with Rule 7
of the POCSO Rules and Section 357A Cr. PC vis-à-vis child victims
of sexual offences. In other words, as on date, neither a Victims
Compensation Scheme nor a Victims Compensation Fund exists in
Delhi for purposes of child victims of sexual offences. This is a
vacuum within the scenario envisaged in Rule 7(4) of the POCSO
Rules quoted earlier. While we note that the improved scheme would
take care of vacuum in the provision for child victims, there is no
inhibition before us in awarding a suitable amount of compensation for
the prosecutrix in the case at hand, without feeling strait-jacketed by
the Delhi Scheme of 2011.
116. As observed earlier, the learned trial judge did not hold any
inquiry to gather further material for fair and reasonable compensation
to be evaluated. It is too late in the day for such inquiry to be now
held. Given the value of money, the amount of ₹3 Lakhs which is the
maximum permissible under the Delhi Scheme of 2011, even if
disbursed, would hardly suffice for the prosecutrix for total
recompense and rehabilitation. Crl. A. No.538/2016 Page 65 of 72
117. The background of the family, as noted by us in the initial part
of this judgment, shows the prosecutrix has been leading a socially
disadvantaged life, her mother making the two ends meet by working
as a maid-servant in several households. Given the nature of loss, pain
and suffering which she undoubtedly would have undergone, we find
this to be a fit case where the State must pay compensation for the
minimum sum of ₹7.5 Lakhs (which would be the compensation
awardable under the proposed scheme of 2015, as and when brought in
force). We recommend accordingly for appropriate award and the
provision to be made by Delhi State Legal Services Authority. The
amount of ₹2 Lakhs awarded as compensation by the trial court, if
paid, of course, would be suitably adjusted.
118. We are informed that with no Victims Compensation Fund
having yet been established by the Government of NCT of Delhi,
Delhi State Legal Services Authority has been arranging the payment
of compensation under Section 357A Cr. PC with the help of funds
periodically transferred to it by the Government of NCT of Delhi
under directions of this court in the public interest litigation (In re:
Court on its own motion) referred to earlier. We are further informed
that Delhi State Legal Services Authority has also been maintaining a
separate account, on its own initiative, pending creation of Victims
Compensation Fund by the State Government, collecting therein the
amount of costs or fines imposed by various courts which fund is also
routinely tapped for compensation to be paid. Should Delhi State
Legal Services Authority find it difficult to pay the compensation
ordered by us in the case at hand from the funds transferred to it by the Crl. A. No.538/2016 Page 66 of 72
Government of NCT of Delhi, it would have the liberty to utilize the
funds collected by it on its own initiative as referred to above.
119. In order to ensure that the amount of money reaching the hands
of the prosecutrix at very young age is not frittered away, we direct
that the sum to be released to her now shall be put in interest bearing
fixed deposit receipt in a nationalized bank of her choice in her name
for a period of ten years with right to draw periodic interest.
120. For reasons set out earlier, we are unable to uphold the direction
about the amount of ₹13 Lakhs to be paid as compensation over and
above what has been ordered under Section 357A Cr. PC. Noticeably,
the said amount included an amount of ₹12 Lakhs, which was to be
preserved as a corpus in a fixed deposit receipt in the name of the child
born on account of the offence of rape to the prosecutrix. It seems to
have escaped the notice of the learned trial judge passing the order on
sentence that the said child, after its birth on 10.02.2014, has already
been given away in adoption. This is what was stated in the court by
the prosecutrix (PW-2) during her deposition and by her mother (PW-
3), both recorded on 28.04.2014. Given the concerns of privacy and
confidentiality and given the possible repercussions such order might
entail impacting the future welfare of the individuals involved, we do
not consider it appropriate to uphold such directions in the case at
hand vis-à-vis the child born to the prosecutrix and consequently set
aside the same as well, though reserving a right unto the adoptive
parents of the said child to approach the legal services authority for Crl. A. No.538/2016 Page 67 of 72
compensation in its favour should they feel it necessary to claim on its
behalf.
121. We direct that the learned trial judge shall call for a report from
the DSLSA with regard to the proper compliance by payment of
compensation under Section 357A Cr. PC to the victim prosecutrix
and issue further directions, as may be required in accordance with
law. Further, it shall also take all necessary steps under the law to
endeavour to recover the fine and for the amount thereby realized to be
paid to the victim as compensation in terms of direction given by us
under Section 357(1)(b) Cr. PC. We, however, must add a word of
caution that such recovery shall not be enforced by attachment or sale
of any of such assets of the appellant as are in use or enjoyment of the
prosecutrix or her mother.
GENERAL OBSERVATIONS
122. In the beginning of this judgment, we expressed our anguish at
the disclosure of the identity of the victim prosecutrix in the case at
hand. If reference is required in this context, the particulars of the
prosecutrix noted at the stage of recording of the evidence only need to
be seen. The objective behind the statutory command for in-camera
proceedings in such cases being the rule in terms of Section 327 Cr.
PC is to protect the victim female from secondary victimization.
123. In the context of child victim of sexual offences, the POCSO
Act explicitly so directs, by the provision contained in Section 33(7),
which reads as under :- Crl. A. No.538/2016 Page 68 of 72
―33. Procedure and powers of Special Court –
(7). The Special Court shall ensure that the identity of
the child is not disclosed at any time during the course of
investigation or trial;
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.
Explanation – For the purposes of this sub-section, the
identity of the child shall include the identity of the child‘s
family, school, relatives, neighbourhood or any other
information by which the identity of the child may be
revealed.‖
124. In view of the above, it is the statutory responsibility of the
Special Court to ensure that the identity of the child is not disclosed at
any time during the course of investigation or trial. The proviso carves
out an exception for the court to permit such disclosure but the
consideration therefor being again “the interest of the child”. As
clarified in the explanation, the identity of the child does not mean
only the name but includes the identity of family, school, relatives,
neighbourhood or any other information by which his/her identity may
stand exposed.
125. All concerned, not merely the statutory authorities (which
include the courts), would have to bear in mind that the legislative
command against disclosure of identity of victims of sexual offences
requires strict and scrupulous compliance. It has to be borne in mind
that the relevant provisions including those referred to above are to be
read, after coming into force of Criminal Law (Amendment) Act, 2013
with effect from 03.02.2013, with the provision contained in Section
228 A IPC, whereunder improper disclosure of the identity of the
victim of such offences entails sanction in penal law. Since the
responsibility to enforce the criminal law rests with the criminal
courts, breach of such propriety by the courts themselves cannot be
brooked. Though directions on the subject have been given in the
past, we reiterate and direct that all the trial courts shall ensure that the
identity of the victim in cases involving sexual offences shall not be
disclosed anywhere on judicial record and that names shall be referred
by pseudonyms in accordance with law and they be so identified
during the course of trial and in the judgment.
126. The learned trial judge erred in recording concluding directions
as well. The appellant was arrested on 18.10.2013. He has remained
in custody ever since. He was sentenced to life imprisonment and
directed to be sent to prison under the conviction warrant. Yet, the
order also states he was called upon to furnish personal bond which
had even been “accepted” in terms of Section 437-A Cr.P.C.
Obviously, there was no occasion for Section 437-A to be applied.
127. Before parting, we feel the necessity of touching upon one more
concern which may appear, on first blush, to be cosmetic but which, to
our mind, is of import. As mentioned earlier, the FIR of the case at
hand was registered also for investigation into an offence under the
POCSO Act. Upon conclusion of the investigation into the FIR,
charge-sheet was submitted by the police in the court of sessions
designated as the “Special Court” under Section 28 of the POCSO Act
on 12.11.2013, addressing it as “Metropolitan Magistrate”. The 
Special Court took cognizance on the said report describing itself as
the court of Additional Sessions Judge for New Delhi district. In all
the subsequent proceedings, right through to the stage of order on
sentence passed on 05.01.2016, the learned trial court described the
power and jurisdiction exercised by it to be that of an Additional
Sessions Judge. There is no reference whatsoever anywhere reflecting
that the trial court was conscious that the jurisdiction it was exercising
in the case at hand was that of a Special Court created under the
POCSO Act.
128. The courts dealing with the sexual offences of the kind involved
here, whether as the courts of session under the general law or as the
special court under the special enactments like Commissions for
Protection of Child Rights Act, 2005 or the POCSO Act are presided
over by judicial officers who are fairly senior in rank, well
experienced and carefully picked up for such responsibilities requiring
utmost sensitivity for the issues arising for resolution and
determination. The nomenclature “Special Court”, in contrast to the
expression “court of session” is not merely a matter of form. The
qualifying word “special” preceding the word “court” imbues it with
the elements of specialty or specialization. It may be that the same
court originally designated as a court of session with responsibility for
sessions trials under the general law, is also designated as the “Special
Court” under the special enactments like POCSO Act. But it is
essential, and of import, that while exercising the powers and
jurisdiction under the special law, the presiding judge properly
describes himself as the presiding judge of the “Special Court”. Any
other expression or description tends not only to create confusion as to
the procedure and powers but also erode the requisite level of
sensitivity on the part of the judge-in-chair. We, thus direct that the
judicial officers shall always bear in mind the jurisdiction they are
exercising in the cases brought before them and properly describe the
power, designation and jurisdiction in the proceedings.
FINAL ORDER
129. The appeal against conviction is thus dismissed with
modification in the order on sentence as directed above. The learned
trial court, or the successor court, shall take all necessary and
consequential follow-up steps in accordance with the law in light of
these directions.
130. Given the issues of general nature which have come up for our
consideration and directions in this case, it would be proper that the
judgment is circulated for information and necessary compliance
amongst all judicial officers of Delhi. We direct the District and
Sessions Judge (HQ) to do so at the earliest under intimation to the
Registrar General of this court.
131. We also direct a copy of this judgment to be made over to the
Member Secretary of Delhi State Legal Services Authority and to the
Principal Secretary (Law) of the Government of NCT of Delhi for
bearing in mind the concerns expressed by us vis-à-vis the
enforcement of the provisions contained in Section 357A of the Code
of Criminal Procedure, 1973, read with Section 33(8) of the Protection 
of Children from Sexual Offences Act, 2012 and Rule 7 of Protection
of Children from Sexual Offences Rules, 2012.
(R.K. GAUBA)
 JUDGE
 (GITA MITTAL)
 JUDGE
DECEMBER 09, 2016

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