Nirbhaya Act and POCSO’s stringent laws, yet why does sexual criminals get relief? – Even after nirbhaya act and pocco, the same question remains if staring at a girl is ran why not touching her private parts opns2

After the Nirbhaya case, due to the tough struggle of women organizations, the laws of the rape case were made more stringent. It was expected that after the enactment of these laws, men would think Saun times before doing such acts. But for the safety of women and girls, strict laws like Nirbhaya Act and Poxo Act have been made, but judges are defining them according to their own that the meaning of the law is over. Women become difficult to get justice, other, women get so discouraged that they seem to be a better option. The question also arises that watching with wrong intentions, staring and touching is a crime of sexual abuse under the Poxo Act, then forcibly touching the breast and breaking the pulse of pajamas, trying to pull under the culvert, why not the crime of rape attempt?

In the Allahabad High Court, a bench of Justice Ram Manohar Narayan Mishra said something similar to the effort of rape and the preparation of crime, saying something similar, saying that any woman or any girl’s parents will consider it better to keep their mouth closed if there is any such crime. The judge said that ‘catching the victim’s breasts, breaking the pulse of her pajamas, trying to pull her under the culvert does not come under the attempt to rape. This is a serious sexual attack.

The High Court has directed to amend the summons order issued from the lower court to issue new summons against the accused under the revised sections. The question arises whether even after the Nirbhaya case, the laws are so weak that the accused mobilize relief from the judiciary?

What are the arguments of the Allahabad High Court judge?

Why the High Court did not consider the breaking of breast and breaking the pulse of pajamas, while giving the verdict, it can be tried to understand with the comments made by the bench of Justice Ram Manohar Narayan Mishra.

Justice Ram Manohar Narayan Mishra, while partially acknowledged the petition of the accused, said, “The allegations and facts against the accused Pawan and Akash seem to see that there is no crime of rape attempt in this case.” In order to allege rape attempt, the prosecution has to establish that it had gone beyond the preparation stage. The question is, from where to bring evidence from the woman or girl or victim’s family. The law should be such that at least work can be done in evidence and witnesses. How would an 11 -year -old girl explain what was the intention of the person in front?

The judge said, the accused tried to pull the victim under the culvert, and broke the pulse of her pajamas. The witnesses did not even say that due to this act of the accused, the victim became naked or her clothes landed. Meaning, the victim should find a witness that she had become naked. Obviously, even after the enactment of all the laws, the matter is getting stuck there. Judge Saheb also says that the accused did not tell whether the painting was done or tried to do it. However, the judge has ordered the accused to register a case in two minor sections instead of rape or rape attempt. These include Section 354-B of an IPC (attack or use of criminal force) and Section 9/10 (serious sexual attack) of the Poxo Act.

On this decision of the judge, Supreme Court advocate Kapil Sibal says –

Wife died but did not consider the statement of forcibly having unnatural sex as rape

Just a few months ago, there is another incident that shows the weakness of our law and justice code. Her husband from a woman from Chhattisgarh makes sex so vandalism that she has to admit in the hospital. The victim told the magistrate before her death that she has done this condition due to the force made by the husband. In this case, the victim’s maternal uncle had filed a case under sections 376, 377 and 304 of the IPC on her husband. In 2019, the District Court convicted the victim’s husband for rape, unnatural acts and non-Iradatan homicide and sentenced him to 10 years rigorous imprisonment. But the High Court dismissed the decision of the district court and ordered the accused husband to be released immediately. The reason was given that there is no law in India for marital rape. However, in view of the poor relationship of husband and wife in India, it should be that even if the wife dies due to forced food or drinking alcohol, a case of murder should be filed.

The judge did not consider a sexual attack to touch the breast on top of the cloth

On 19 January 2021, Justice Pushpa Gaynadiwala of Nagpur bench of Bombay High Court said in his order, “The breast can not be called a sexual attack on the top of the cloth. Justice Ganadiwala amended the decision of the session court and acquitted the convict with the punishment given under the Poxo Act, while a year he was pronounced under Section 354 of IPC.
This decision was challenged in the Supreme Court. Against the decision of the High Court, Attorney General KK Venugopal had said, in terms of this decision, one can wear gloves and turn his hand on a woman’s body, but she will not be considered accused of sexual exploitation. On January 27, 2021, the Supreme Court stayed this decision of the Bombay High Court. Stanning, the court had said that such decisions will set a dangerous example, so it should be changed. Now this has been changed. The Supreme Court had made it clear that under the POCSO Act, it is not necessary to have ‘skin to skin’ touch for allegations of sexual exploitation.

Is it not an attempt to rape Dirob?

Under the Poxo Act, Derobe (to undress or nude) and Attempt to Rape (Rape attempt) are two different concepts, which have a difference on the basis of legal definition and severity. If a person tries to tear or take off the child’s clothes, but no one tries to pay penetration or rape, then it will come under the category of Derobe. That is, it will not be considered an attempt to rape or rape but will be considered a crime. Attempt to Rape means to make a clear effort to rape, in which the intention of the criminal and his actions seem to be moving towards rape. It may be that the judge of the Allahabad High Court may have felt that the girl’s clothes have not been intended to rape. Or it may be that they have been compulsory that they have not found evidence to prove the attempt of rape.

But the BBC quoted a lawyer of the Lucknow bench of the Allahabad High Court as saying that the Poxo Act and the sections of the Indian Penal Code (IPC) contain clear provisions regarding sexual offenses, which were not used properly in this matter. The High Court should have given justice to the victim using these sections. The Indian Code of Justice (BNS) has better provisions. He says that BNS has more clarity about such crimes. Section 63 (attempt to rape) the intention of rape and any work done in its direction will be considered a crime under this section. Section 75 (Sexual harassment) If a person tampered with a purpose of dissolving a woman’s shame or hurting her dignity, then it will come under the category of crime. Under Section 79, if an attempt is made to take off a woman’s clothes or insult her, it will be considered a serious crime.