Can a man accused of raping a mentally challenged woman be prosecuted under POCSO -- the law meant for the welfare of child victims of sexual abuse?
A mother of a 38-year-old woman, who is a patient of cerebral palsy, raised this question before the Supreme Court and said her daughter’s alleged rapist should be booked under the Protection of Children from Sexual Offences (POCSO) Act because her mental age was that of a child’s. The accused in the case is booked under the Indian Penal Code (IPC) and facing trial in Saket district court.
POCSO is a stringent law compared to IPC. It prescribes a child-friendly procedure wherein an accused’s lawyer cannot ask direct questions from the victim and can do so only through the judge. In court the accused or his counsel cannot see the child, who sits in a separate room when recording her statement. POCSO does not fix a ceiling for compensating victims.
Advocate Aysweria Bhatti told a bench headed by Justice Dipak Misra that the petitioner’s daughter’s mental age is of a 6-year-old and communication skill of a 3-year-old. “Her speech is incoherent and an expert is needed when she records her statement before the judge,” Bhatti said. “Due to her disability she is still a child mentally.”
The bench agreed to examine the question and asked for the police response on the petition. It fixed May 3 to hear the case and stopped the Saket trial court from hearing the rape case.
As per the police case, the girl was raped in July 2014. The accused allegedly sexually assaulted her in her house when the mother was not there.
A petition was filed before the Delhi high court for a similar relief. But the HC sent the matter to the trial court and did not give any order on the plea. It just mandated presence of a medical expert during the victim’s examination.
Bhatti told HT the trial judge did not record the victim’s statement verbatim. “In February this year she went for a surgery that left her with 22 stitches. The judge, however, wanted her to be in the court,” he said.