Asked October 05, 2016

Charges under POSCO Act

  • 2 Answers

my brother is charged under posco act.All the the medical reports have turned out to be negative. According to the victim's statement {5-6 year old girl}, my brother asked her to kiss on his penis which she declined and before leaving he threatened her not to disclose the matter to anyone. The surprising thing is that it all happened in a few minutes in the very next room to where i was present along with the victims elder sister, two other boys all of them being under 12 years old, but still i heard no screams nor did her sister or the other two boys. after reading the posco act i found the situation resembling "Non-penetrative sexual assault" section of the posco act. Is there a way to save my brother from being charged. Please help.

Answers 2

Section 7 of the POCSO Act states that anyone touching the vagina, penis, anus or breast of the child or making the child touch the vagina, penis, anus or breast of anyone, with sexual intent, or committing any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.

The punishment for this is imprisonment for three to five years, and fine.

Now the burden of proof is on the accused, keeping in view the vulnerability and innocence of children.

Coming to the present case:

1. If we assume that the child has been asked to do the act, it will not show in the medical reports (unless the process included psychotherapy/psychiatry sessions).

2. It is possible that the act was asked to be done, and that the child might not have screamed. Generally speaking, s/he would have screamed if there was some sort of force, or physical harm being done on the child. But that has not been alleged here, so this argument falls apart.

3. Being a five year old child, the court will be inclined to believe that at this age, the child is too innocent to concoct a story about the accused asking her to kiss his penis.

Hence the situation looks quite grim for your brother, and you might not be able to prevent him from being charged.

Your only options are:

1. Get witnesses and evidence to prove that the alleged act was not done. This is very important and has a higher weightage in these cases since POCSO puts the burden of proof on the accused to prove that he has NOT done the alleged act.

2. To prevent misuse of the law, punishment has been provided for false complaints or false information with malicious intent. Under section 22, one who makes a false complaint or provides false information against any person solely with the intention to humiliate, extort or threaten or defame him, will be punished with imprisonment for six months or with fine or with both. The child, however, will not be punished. Please note that the false complaint should be with an intention to extort or humiliate. Mistake of facts is not a false complaint.


Agree Comment 0 Agrees about 5 years ago
  • Default avatar
    the medical reports of the girl turned in yesterday, with all of them being negative but i believe just medical reports won't be enough. And one more thing about the girl, after inquiring from the other two kids present that day i came to know that the girl was well aware of things like genitalia and sex as before a few months ago there was a case when she was caught peeping at one of the boys while he was urinating, apart from that she is well versed in sex signs and vulgar words. I don't know if this will be helpful or not, as were discussing the matter for compromise, the girl father told that it was due to a remark by one of my family members during the scene that angered him to put up the case in the first place else he was ready to compromise on that very moment. and in addition to that the charge sheet came in, where apart from pocso, act 506 and 354 are included.
    Agree 0 Agrees about 5 years ago

1. I am assuming you mean Section 506 and 354 of IPC. Section 354 relates to actions that are intended to outrage a woman’s modesty. The “woman” can be a child as well. Section 506 is criminal intimidation, perhaps because of the alleged act of threatening her not to disclose it to anyone. It is when a person threatens another with any injury to her, her reputation or her property, or to the person or reputation of any one in whom she is interested, with intent to cause alarm to that person, forcing them to do something which they are not legally bound to do, using threats.

2. Generally, for some offences, you can hire a lawyer and file an application before the High Court under Section 482 of the Criminal Procedure Code (CrPC) which recognizes the inherent powers of the High Court which include the power to quash an FIR or stay further investigation by the police. 

However, this particular case might not be quashed by the court in this case since the alleged crime is of a sexual nature. Applications under 482 are allowed only in case of compoundable offences. In respect of what the courts consider “serious offences” the settlement between the offender and the victim can have no legal sanction at all, the Supreme Court has held.[1]

3. Wait and see how the settlement goes. If it goes well then the parents might withdraw the case. Otherwise, I suggest you gather all evidence and witness that will help you prove that this child is conjuring up facts, and that such an imaginative allegation CAN be expected of her. This point might prove quite helpful in this case.  A lawyer who can get to prove this, without appearing to harass the child (since the inclination will be to assume the child is innocent and scared.) will be needed


[1] Narinder Singh and Ors. v. State of Punjab (2013). Can be read here.

Agree Comment 0 Agrees about 5 years ago

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