The Supreme Court on Friday set out to examine whether a man who rapes or sexually abuses a mentally challenged victim can be punished under the stringent provisions of Protection of Children from Sexual Offences (POCSO) Act 2012 as such victims have an under-developed brain like that of a child.
The occasion for the court to examine this question came on a petition by a Delhi-based doctor whose daughter of 38 years with cerebral palsy was raped by a man in the year 2010. Due to the impact of the gruesome incident, the victim’s mental capacity drastically reduced from that of an 8-year old to a three-year old toddler. This made the recording of her statement before a Magistrate extremely difficult.
Although the Delhi Police proceeded with filing chargesheet against the accused under Section 376(2)(l) of the Indian Penal Code (sexual assault with a mentally or physically challenged victim), the victim’s mother approached the Delhi High Court to allow shifting of the case to the Special Court trying POSCO cases. The High Court in June last year turned down the request forcing the 60-year old mother to approach the Supreme Court.
Issuing notice on the petition, a bench of Justices Dipak Misra and Shiva Kirti Singh sought responses from the Delhi Government and the accused. The court was convinced by the argument of the petitioner that the mental age of the victim should be taken as the criteria for classifying an offence under POSCO instead of the chronological age.
The petition filed by advocate Aishwarya Bhati said, “In view of her present functional age of three to four years following the heinous crime and her previous functional age of 8-10 years, the matter be transferred to the Special Court established under POSCO Act as she remains a child in the interest of justice.”
The POSCO Act prescribes specific offences of sexual abuse and assault and the punishment becomes aggravated in cases where the victim is mentally ill or where the accused is in a position of trust or authority.