NAWABUDDIN versus STATE OF UTTARAKHAND on 8 February 2022

NAWABUDDIN

v.

STATE OF UTTARAKHAND

(Criminal Appeal No. 144 of 2022)

FEBRUARY 08, 2022

[M. R. SHAH AND B.V. NAGARATHNA, JJ.]

Protection of Children from Sexual Offences Act, 2012: ss.5/6 – Penal Code, 1860 – s.376(2)(i) – Prosecution case was that theappellant-accused was neighbour of PW-1-informant – On thefateful day, when PW-1 went out of the house, appellant took fouryear old daughter of PW-1 to the bushes – He removed his ownclothes as well as clothes of the victim girl and fondled her privateparts and penetrated his finger into the vagina of the victim girl –Some persons spotted the accused and caught him red handed –Trial Court as well as the High Court convicted the accused for theoffences under s.5 of the POCSO Act punishable under s.6 of thePOCSO Act – On appeal, held: It was established and proved thatthe accused penetrated his finger in the vagina and because of thatthe victim girl felt pain and irritation in urination as well as pain inher body – There was redness and swelling around the vagina foundby the doctor before whom the victim girl narrated the entire incident– Case fall under s.3(b) of the POCSO Act and it can be said to bepenetrative sexual assault – Considering s.5(m) of the POCSO Actas such penetrative sexual assault was committed on a girl childaged four years (below twelve years) the same can be said to be‘aggravated penetrative sexual assault’ punishable under s.6 ofthe POCSO Act – Therefore, both, the Trial Court as well as theHigh Court rightly convicted the accused for the offences unders.5 of the POCSO Act punishable under s.6 of the POCSO Act.

Protection of Children from Sexual Offences Act, 2012: Objectand purpose of enactment of the POCSO Act – The POCSO Act hasbeen enacted to protect the children from the offences of sexualassault, sexual harassment and pornography and to provide forestablishment of special courts for trial of such offences and formatters connected therewith and incidental thereto – The POCSOAct has been enacted keeping in mind Arts.15 and 39 of theConstitution of India.

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ASentence/Sentencing: Offence against children of sexualnature – Punishment for – Held: Any act of sexual assault or sexualharassment to the children should be viewed very seriously and allsuch offences of sexual assault, sexual harassment on the childrenhave to be dealt with in a stringent manner and no leniency shouldbe shown to a person who has committed the offence under theBPOCSO Act – By awarding a suitable punishment commensuratewith the act of sexual assault or sexual harassment, a message mustbe conveyed to the society at large that, if anybody commits anyoffence under the POCSO Act of sexual assault, sexual harassmentor use of children for pornographic purposes they shall be punishedCsuitably and no leniency shall be shown to them – Cases of sexualassault or sexual harassment on the children are instances ofperverse lust for sex where even innocent children are not sparedin pursuit of such debased sexual pleasure – Exploitation of children in such a manner is a crime against humanity and the society –DTherefore, the children and more particularly the girl child deservefull protection and need greater care and protection whether in theurban or rural areas – No leniency can be shown to an accusedcommits the offences under the POCSO Act, 2012 – Protection ofChildren from Sexual Offences Act, 2012.

Conclusion

ESentence/Sentencing: Accused held guilty for committing‘aggravated penetrative sexual assault’ – Plea for leniency insentencing – Held: Accused was aged approximately 65 years ofage at the time of commission of offence – He was a neighbour ofthe victim girl – He took advantage of the absence of her parents,when her mother went to fetch water and her father had gone toFwork – He was found to have committed aggravated penetrativesexual assault on a girl child aged four years, which demonstratesthe mental state or mindset of the accused – As a neighbour, in fact,it was the duty of the accused to protect the victim girl when alonerather than exploiting her innocence and vulnerability – He insteadGof showing fatherly love, affection and protection to the child againstthe evils of the society, rather made her the victim of lust – It is acase where trust has been betrayed and social values are impaired– Therefore, the accused as such does not deserve any sympathyand/or any leniency – At the relevant time, the minimum punishmentprovided for the offence under s.6 of the POCSO Act, 2012 was tenH

years RI and which may extend to imprisonment for life – Accusedis aged 70-75 years of age and is suffering from Tuberculosis (TB)– Therefore, considering such mitigating circumstances, life sentenceis converted to fifteen years RI – The fine imposed by the TrialCourt confirmed by the High Court is maintained – Protection ofChildren from Sexual Offences Act, 2012.

Partly allowing the appeal, the Court

HELD: 1. There are concurrent findings recorded by boththe Courts below, recorded on appreciation of evidence on recordto the effect that the accused tried to commit the offence of rapeon the victim girl aged four years. It has been established andproved by the prosecution that the victim girl was lured by theappellant – accused; she was taken to the bushes; accusedremoved his own clothes as well as the clothes of the victim girland fondled her private parts and penetrated his finger into thevagina of the victim girl. The same is fully supported by the doctor– PW-10, who examined the victim girl and before whom the victimgirl narrated the entire incident to her which was recorded inmedical examination report. As per PW-10 who is an independentwitness, the victim girl told her that the accused tried to penetratehis finger and therefore she felt pain and irritation in urination aswell as she also felt pain in her body. As per PW-10 there wasredness and swelling around the vagina. Though the otherwitnesses who seem to have been won over might not havesupported the case of the prosecution, there is no reason to doubtthe deposition of PW-10. There are no allegations on behalf ofthe accused that there was any enmity with PW-10. Therefore, itis safe to convict the accused relying upon the deposition ofPW-10 before whom the victim girl narrated the entire incidentwhich was recorded in the medical examination report.[Para 7][1092-F-H; 1093-A-C]

2. As per Section 3 of the Act, a person is said to commit‘penetrative sexual assault’ if-(b) he inserts, to any extent, anyobject of a part of the body, not being the penis, into the vagina.Section 5 of the Act defines ‘aggravated penetrative sexualassault’ and as per Section 5(m) whoever commits penetrativesexual assault on a child below twelve years it is aggravated A

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Apenetrative sexual assault. In the present case, it has beenestablished and proved that the accused penetrated his fingerin the vagina and because of that the victim girl felt pain andirritation in urination as well as pain on her body and there wasredness and swelling around the vagina found by the doctor.Therefore the case would fall under Section 3(b) of the POCSOBAct and it can be said to be penetrative sexual assault andconsidering Section 5(m) of the POCSO Act as such penetrativesexual assault was committed on a girl child aged four years(below twelve years) the same can be said to be ‘aggravatedpenetrative sexual assault’ punishable under Section 6 of theCPOCSO Act. Therefore, both, the Trial Court as well as theHigh Court have rightly convicted the accused for the offencesunder Section 5 of the POCSO Act punishable under Section 6of the POCSO Act. [Para 8][1093-H; 1094-A-D]

3. It can be seen from the Statement of objects and reasonsDof the POCSO Act that since the sexual offences against childrenwere not adequately addressed by the existing laws and a largenumber of such offences were neither specifically provided fornor were they adequately penalised, the POCSO Act has beenenacted to protect the children from the offences of sexual assault,sexual harassment and pornography and to provide forEestablishment of special courts for trial of such offences and formatters connected therewith and incidental thereto.[Para 9.3][1096-B-D]

Eera v. State (NCT of Delhi) (2017) 15 SCC 133 : [2017] 7SCR 924; Alakh Alok Srivastava v. Union of India & Ors.F(2018) 17 SCC 291 : [2018] 6 SCR 972 – relied on

4. The POCSO Act has been enacted keeping in mindArticle 15 and 39 of the Constitution of India. Article 15 of theConstitution, inter alia, confers upon the State powers to makespecial provision for children. Article 39, inter alia, provides thatGthe State shall in particular direct its policy towards securing thatthe tender age of children are not abused and their childhoodand youth are protected against exploitation and they are givenfacilities to develop in a healthy manner and in conditions offreedom and dignity. To achieve the goal as per Article 15 and 39

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of the Constitution, the legislature has enacted the Protection ofChildren from Sexual Offences Act, 2012.As noted in theStatement of objects and reasons, as per the United NationsConvention on the Rights of Children, to which India is asignatory to the treaty, the State Parties to undertake allappropriate national, bilateral and multilateral measures toprevent (a) the inducement or coercion of a child to engage inany unlawful sexual activity; (b) the exploitative use of childrenin prostitution or other unlawful sexual practices; and (c) theexploitative use of children in pornographic performances andmaterials. The general comment No.13 on the Conventionspecifically dealt with the right of the child to freedom from allforms of violence and it has observed that “no violence againstchildren is justifiable; all violence against children is preventable”[Paras 9.4, 9.5][1096-D-G]

5. By awarding a suitable punishment commensurate withthe act of sexual assault, sexual harassment, a message must beconveyed to the society at large that, if anybody commits anyoffence under the POCSO Act of sexual assault, sexualharassment or use of children for pornographic purposes theyshall be punished suitably and no leniency shall be shown to them.Cases of sexual assault or sexual harassment on the children areinstances of perverse lust for sex where even innocent childrenare not spared in pursuit of such debased sexual pleasure.Exploitation of children in such a manner is a crime againsthumanity and the society. Therefore, the children and moreparticularly the girl child deserve full protection and need greatercare and protection whether in the urban or rural areas. Noleniency can be shown to an accused who has committed theoffences under the POCSO Act, 2012 and particularly when thesame is proved by adequate evidence before a court of law.[Para 10][1097-E-G, H; 1098-A, C-D]

State of Rajasthan v. Om Prakash (2002) 5 SCC 745 :[2002] 3 SCR 753 ; Nipun Saxena v. Union of India(2019) 2 SCC 703 : [2018] 14 SCR 755 – relied on.

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A6. In the present case, the accused was aged approximately65 years of age at the time of commission of offence. He was aneighbour of the victim girl. He took advantage of the absence ofher parents, when her mother went to fetch water and her fatherhad gone to work. He is found to have committed aggravatedpenetrative sexual assault on a girl child aged four years, whichBdemonstrates the mental state or mindset of the accused. As aneighbour, in fact, it was the duty of the accused to protect thevictim girl when alone rather than exploiting her innocence andvulnerability. The victim was barely a four years girl. He insteadof showing fatherly love, affection and protection to the childCagainst the evils of the society, rather made her the victim oflust. It is a case where trust has been betrayed and social valuesare impaired. Therefore, the accused as such does not deserveany sympathy and/or any leniency. [Para 10.1][1098-D-G]

7. However, the punishment provided for the offence underDSection 6, as it stood prior to its amendment and at the time ofcommission of the offence in the instant case for aggravatedpenetrative sexual assault was rigours imprisonment for a termwhich shall not be less than ten years but which may extend toimprisonment for life and shall also be liable to fine. Now as perthe amended Section 6 with effect from 16.08.2019, the minimumEpunishment provided is twenty years and which may extend toimprisonment for life, which shall mean imprisonment for theremainder of natural life of that person, and shall also be liable tofine, or with death. Therefore, at the relevant time, the minimumpunishment provided for the offence under Section 6 of theFPOCSO Act, 2012 was ten years RI and which may extend toimprisonment for life. It is reported that today the accused isaged 70-75 years of age and it is also reported that he is sufferingfrom Tuberculosis (TB). Therefore, considering such mitigatingcircumstances if the life sentence is converted to fifteen yearsRI and the fine imposed by the Trial Court confirmed by the HighGCourt to be maintained, it can be said to be an adequatepunishment commensurate with the offence committed by theaccused. [Para 10.1][1098-G-H; 1099-A-C]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.144 of 2022.

From the Judgment and Order dated 22.08.2019 of the High Courtof Uttarakhand at Nainital in Criminal Appeal No.280 of 2018.

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Saju Jacob, Dinesh Moorjani, Sadaf Vali, Devansh Gupta, Ms.Mili Verma, Ms. Aruna Gupta, Advs. for the Appellant.

Krishnam Mishara, Jatinder Kumar Bhatia, Advs. for theRespondent.

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The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 22.08.2019 passed by the High Court of Uttarakhand atNainital in Criminal Appeal No. 280 of 2018 by which the High Courthas dismissed the said appeal preferred by the accused – appellant hereinand has confirmed the conviction of the accused for the offencespunishable under Sections 376(2)(i) of IPC and Section 5/6 of theProtection of Children From Sexual Offences Act, 2012 (hereinafterreferred to as “POCSO Act”), the original accused has preferred thepresent appeal.

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2. That as per the case of the prosecution on 17.06.2016 at about5:00 pm, the first informant (PW-1) had gone to fetch water and herhusband was out for work. At that time, her daughter (victim girl) agedfour years was all alone in the house. The accused – appellant hereinwho was a neighbour of PW-1, enticed and took the victim girl in thebushes to rape her. However, at that time the accused was spotted bysome persons naked in the process of raping the victim girl. The accusedand the victim girl were disrobed. The people who had gathered aroundcaught the accused red handed and handed him over to the police. Thata first information report was lodged by PW-1 – mother of the victim girl G

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Afor the offences punishable under Sections 376 read with 511 of IPCand Section 3/4 of the POCSO Act. The victim girl was medicallyexamined by PW-10 – Dr. Vandana Sundriyal on 17.06.2016. Duringthe course of investigation the statement of the victim girl as well as thewitnesses were recorded. After conclusion of the investigation theinvestigating officer filed the chargesheet against the accused for theBoffences punishable under Section 376(2)(F) of IPC and Section 3/4 ofthe POCSO Act. The charges were framed against the accused for theoffences punishable under Section 376(2)(i) of IPC and Section 5/6 ofthe POCSO Act. The accused denied the charges and claimed to betried. Therefore, he was tried by the learned Special Judge (POCSOCAct) for the aforesaid offences.

2.1 To prove the charges against the accused and to prove thecase, the prosecution examined as many as thirteen witnesses includingPW-1 – mother of the victim girl and PW-10 – Dr. Vandana Sundriyalwho examined the victim girl on 17.06.2016. After closure of theDprosecution evidence, statement of the accused under Section 313 ofCr.PC was recorded. His case was of total denial. On appreciation ofevidence and more particularly relying upon the deposition of PW-10 -Dr. Vandana Sundriyal before whom the victim girl narrated the entireincident, the Trial Court held the accused guilty for the offences punishableunder Section 376(2)(i) of IPC and Section 6 of the POCSO Act, 2012.EThe Trial Court sentenced the accused to undergo life imprisonment andalso directed to pay monetary fine of Rs.50,000/-. The Trial Court alsopassed an order that out of the amount of fine of Rs.50,000/-, Rs.30,000/- shall be paid to the victim girl as compensation.

3. Feeling aggrieved and dissatisfied with the impugned judgmentFand order of conviction and sentence passed by the learned Trial Court/Special Judge (POCSO Act), the accused preferred an appeal beforethe High Court. Before the High Court, amongst other grounds, one ofthe grounds was that the case would not fall under Section 5/6 of thePOCSO Act and at the most the case may fall under Section 7/8 of theGPOCSO Act as there was no penetration and at the most and even asper the case of the prosecution the accused had tried to commit therape. By the detailed impugned judgment and order, the High Court hasdismissed the said appeal and has confirmed the conviction of the accusedand the sentence of life imprisonment. Feeling aggrieved and dissatisfiedwith the impugned judgment and order passed by the High Court, theHaccused has preferred the present appeal.

4. Shri Saju Jacob, learned counsel appearing on behalf of theaccused – appellant has vehemently submitted that in the facts andcircumstances of the case the High Court has committed a grave errorin dismissing the appeal and confirming the judgment and order ofconviction passed by the learned Trial Court convicting the accused forthe offences punishable under Section 5/6 of the POCSO Act.

4.1 It is submitted that in fact the witnesses have not supportedthe case of the prosecution. It is submitted that the accused could nothave been convicted on the sole testimony of PW-10 - Dr. VandanaSundriyal.

4.2 It is further submitted by learned counsel appearing on behalfof the accused that even in the present case so called recording of theincident in the mobile has not been established and proved by theprosecution by leading any cogent evidence.

4.3 It is further submitted by learned counsel appearing on behalfof the accused that even as per the prosecution case, it was only anattempt of aggravated sexual assault. It is submitted that in absence ofpenetration and aggravated penetrative sexual assault, the appellant couldnot have been convicted for the offences punishable under Section 5/6of the POCSO Act.

4.4 It is vehemently contended by learned counsel appearing onbehalf of the accused that even considering the prosecution case as it is,at the most the case would fall under sexual assault punishable underSection 8 of the POCSO Act. It is urged that in any case the case wouldnot fall under aggravated penetrative sexual assault.

4.5 In the alternative, it is submitted by learned counsel appearingon behalf of the accused that at the time of the alleged incident accusedwas aged approximately 65 years of age and as on today he is 75 yearsof age. It is submitted that as per Section 6 of the POCSO Act as itstood on the date of incident the minimum sentence provided was tenyears but which may extend to imprisonment for life. It is thereforesubmitted that imposing life sentence is too harsh and disproportionateto the offence committed. Therefore, it is prayed to impose a lesserpunishment than the life imprisonment.

5. Shri Krishnam Mishara, learned counsel appearing on behalfof the State of Uttarakhand, while opposing the present appeal hasvehemently submitted that in the present case as such the prosecution A

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Ahas proved the case beyond doubt. It is submitted that PW-10 - Dr.Vandana Sundriyal who is an independent witness has fully supportedthe case of the prosecution.

5.1 It is further contended by learned counsel appearing on behalfof the State that this is a case of penetrative sexual assault as definedBunder Section 3(b) of the POCSO Act. It is submitted that as per Section5(m) whoever commits penetrative sexual assault on a child below twelveyears, it can be said to be an aggravated penetrative sexual assaultpunishable under Section 6 of the POCSO Act.

5.2 It is urged by learned counsel appearing on behalf of the StateCthat the accused in the present case was a neighbour of the victim girl;he misused his position as a neighbour and tried to penetrate his fingerand then tried to commit rape on the minor girl. However, before hecould succeed in committing rape, he was caught red handed by thelocal persons. It is submitted that the entire incident was narrated by thevictim girl to Dr. Vandana Sundriyal – PW-10. It is therefore submittedDthat when the accused misused his position as a neighbour and committedthe offence under the POCSO Act upon a girl aged four years andlooking to the object and purpose for which the POCSO Act has beenenacted, no leniency should be shown to the accused. It is submittedthat in the facts and circumstances of the case the accused does notEdeserve any sympathy or any leniency.5.3 Making the above submissions it is prayed to dismiss the presentappeal.

6. We have heard the learned counsel appearing on behalf of therespective parties at length.F

7. At the outset it is required to be noted that there are concurrentfindings recorded by both the Courts below, recorded on appreciation ofevidence on record to the effect that the accused tried to commit theoffence of rape on the victim girl aged four years. It has been establishedand proved by the prosecution that the victim girl was lured by the appellantG– accused; she was taken to the bushes; accused removed his ownclothes as well as the clothes of the victim girl and fondled her privateparts and penetrated his finger into the vagina of the victim girl. Thesame is fully supported by Dr. Vandana Sundriyal – PW-10, who examinedthe victim girl on 17.06.2016 and before whom the victim girl narratedthe entire incident to her which was recorded in exhibit A-6 – medicalH

examination report. As per Dr. Vandana Sundriyal – PW-10 who is anindependent witness, the victim girl told her that the accused tried topenetrate his finger and therefore she felt pain and irritation in urinationas well as she also felt pain in her body. As per PW-10 there was rednessand swelling around the vagina. Though the other witnesses who seemto have been won over might not have supported the case of theprosecution, we see no reason to doubt the deposition of PW-10 -Dr. Vandana Sundriyal, who is an independent witness. There are noallegations on behalf of the accused that there was any enmity withDr. Vandana Sundriyal. Therefore, we are of the opinion that it is safe toconvict the accused relying upon the deposition of PW-10 - Dr. VandanaSundriyal before whom the victim girl narrated the entire incident whichwas recorded in the medical examination report namely exhibit A-6.Thus, it has been established and proved by the prosecution that theaccused took the victim girl away from the house; took her deep into thebushes; disrobed her and removed his clothes as well; penetrated hisfinger in the vagina, due to which the victim girl felt pain and irritation inurination and he was about to force himself upon her and commit theoffence of rape when he was caught red handed.

7.1 Now the next question which is posed for the consideration ofthis Court is, what offence the accused had committed. The Trial Courtconvicted the accused for the offences punishable under Sections 376(2)(i)of IPC and Section 5/6 of the POCSO Act. It is the case on behalf ofthe accused that at the most it can be said to be an attempt to commitpenetrative sexual assault and therefore at the most it can be said to bethe case of sexual assault under Section 7 of the POCSO Act punishableunder Section 8 of the POCSO Act. Therefore, it is the case on behalfof the accused that as it is neither a case of penetrative sexual assaultnor aggravated penetrative sexual assault, therefore the punishment oflife imprisonment imposed was not warranted and at the highest he couldhave been punished with imprisonment of either description for a termwhich shall not be less than three years but which may extend to fiveyears, and shall also be liable to fine.

8. While appreciating the aforesaid submissions the relevantprovisions of the POCSO Act are required to be referred to andconsidered. Section 3 of the POCSO Act defines ‘penetrative sexualassault’. As per Section 3 of the Act, a person is said to commit‘penetrative sexual assault’ if-(b) he inserts, to any extent, any object of AB

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Aa part of the body, not being the penis, into the vagina………. Section 4provides ‘punishment for penetrative sexual assault’. Section 5 of theAct defines ‘aggravated penetrative sexual assault’ and as per Section5(m) whoever commits penetrative sexual assault on a child below twelveyears it is aggravated penetrative sexual assault. Section 6 provides‘punishment for aggravated penetrative sexual assault.’ In the presentBcase, it has been established and proved that the accused penetrated hisfinger in the vagina and because of that the victim girl felt pain andirritation in urination as well as pain on her body and there was rednessand swelling around the vagina found by the doctor. We are of the opinionthat therefore the case would fall under Section 3(b) of the POCSO ActCand it can be said to be penetrative sexual assault and considering Section5(m) of the POCSO Act as such penetrative sexual assault wascommitted on a girl child aged four years (below twelve years) the samecan be said to be ‘aggravated penetrative sexual assault’ punishableunder Section 6 of the POCSO Act. Therefore, both, the Trial Court aswell as the High Court have rightly convicted the accused for theDoffences under Section 5 of the POCSO Act punishable under Section 6of the POCSO Act.

9. Now in so far as the prayer on behalf of the accused – appellantherein to take a lenient view in the matter by considering mitigatingcircumstances of old age of the accused and to alter the life imprisonmentEto any other punishment is concerned, the same has to be considered inlight of the object and purpose of enactment of the POCSO Act.

9.1 In the case of Eera Vs. State (NCT of Delhi), (2017) 15SCC 133, this Court has observed on the Statement and Objects andReasons of POCSO Act in para 20 as under: -F

“20. The purpose of referring to the Statement of Objects andReasons and the Preamble of the Pocso Act is to appreciate thatthe very purpose of bringing a legislation of the present nature isto protect the children from the sexual assault, harassment andexploitation, and to secure the best interest of the child. On anGavid and diligent discernment of the Preamble, it is manifest that itrecognises the necessity of the right to privacy and confidentialityof a child to be protected and respected by every person by allmeans and through all stages of a judicial process involving thechild. Best interest and well-being are regarded as being ofHparamount importance at every stage to ensure the healthy

physical, emotional, intellectual and social development of the child.There is also a stipulation that sexual exploitation and sexual abuseare heinous offences and need to be effectively addressed. TheStatement of Objects and Reasons provides regard being had tothe constitutional mandate, to direct its policy towards securingthat the tender age of children is not abused and their childhood isprotected against exploitation and they are given facilities to developin a healthy manner and in conditions of freedom and dignity.There is also a mention which is quite significant that interest ofthe child, both as a victim as well as a witness, needs to beprotected. The stress is on providing child-friendly procedure.Dignity of the child has been laid immense emphasis in the schemeof legislation. Protection and interest occupy the seminal place inthe text of the Pocso Act.”

9.2 In the case of Alakh Alok Srivastava Vs. Union of India& Ors.(2018) 17 SCC 291, in para 14 and 20, it is observed as under: - “14. At the very outset, it has to be stated with authority thatthe Pocso Act is a gender neutral legislation. This Act has beendivided into various chapters and parts therein. Chapter II of theAct titled “Sexual Offences Against Children” is segregated intofive parts. Part A of the said Chapter contains two sections, namely,Section 3 and Section 4. Section 3 defines the offence of“Penetrative Sexual Assault” whereas Section 4 lays down thepunishment for the said offence. Likewise, Part B of the saidChapter titled “Aggravated Penetrative Sexual Assault andPunishment therefor” contains two sections, namely, Section 5and Section 6. The various sub-sections of Section 5 copiouslydeal with various situations, circumstances and categories ofpersons where the offence of penetrative sexual assault wouldtake the character of the offence of aggravated penetrative sexualassault. Section 5(k), in particular, while laying emphasis on themental stability of a child stipulates that where an offender commitspenetrative sexual assault on a child, by taking advantage of thechild’s mental or physical disability, it shall amount to an offenceof aggravated penetrative sexual assault.”

“20. Speaking about the child, a three-Judge Bench in M.C.Mehta v. State of T.N. (1996) 6 SCC 756

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A“1. … “child is the father of man”. To enable fathering of avaliant and vibrant man, the child must be groomed well in theformative years of his life. He must receive education, acquireknowledge of man and materials and blossom in such anatmosphere that on reaching age, he is found to be a man with amission, a man who matters so far as the society is concerned.”B

9.3 As it can be seen from the Statement of objects and reasonsof the POCSO Act since the sexual offences against children were notadequately addressed by the existing laws and a large number of suchoffences were neither specifically provided for nor were they adequatelypenalised, the POCSO Act has been enacted to protect the childrenCfrom the offences of sexual assault, sexual harassment and pornographyand to provide for establishment of special courts for trial of such offencesand for matters connected therewith and incidental thereto.

9.4 At this stage, it is required to be noted that the POCSO Acthas been enacted keeping in mind Article 15 and 39 of the ConstitutionDof India. Article 15 of the Constitution, inter alia, confers upon the Statepowers to make special provision for children. Article 39, inter alia,provides that the State shall in particular direct its policy towards securingthat the tender age of children are not abused and their childhood andyouth are protected against exploitation and they are given facilities toEdevelop in a healthy manner and in conditions of freedom and dignity. Toachieve the goal as per Article 15 and 39 of the Constitution, the legislaturehas enacted the Protection of Children from Sexual Offences Act, 2012.

9.5 As noted in the Statement of objects and reasons, as per theUnited Nations Convention on the Rights of Children, to which India is aFsignatory to the treaty, the State Parties to undertake all appropriatenational, bilateral and multilateral measures to prevent (a) the inducementor coercion of a child to engage in any unlawful sexual activity; (b) theexploitative use of children in prostitution or other unlawful sexualpractices; and (c) the exploitative use of children in pornographicperformances and materials.GArticle 19 of the Convention states the following: -

1. States Parties shall take all appropriate legislative,administrative, social and educational measures to protectthe child from all form/s of physical or mental violence,injury or abuse, neglect or negligent treatment, maltreatmentH

or exploitation, including sexual abuse, while in the care ofparent(s), legal guardian(s) or any other person who hasthe care of the child.

2. Such protective measures should, as appropriate, includeeffective procedures for the establishment of socialprogrammes to provide necessary support for the child andfor those who have the care of the child, as well as forother forms of prevention and for identification, reporting,referral, investigation, treatment and follow-up of instancesof child maltreatment described heretofore, and, asappropriate, for judicial involvement.

The general comment No.13 on the Convention specifically dealtwith the right of the child to freedom from all forms of violence and ithas observed that “no violence against children is justifiable; all violenceagainst children is preventable”

10. Keeping in mind the aforesaid objects and to achieve whathas been provided under Article 15 and 39 of the Constitution to protectchildren from the offences of sexual assault, sexual harassment, thePOCSO Act, 2012 has been enacted. Any act of sexual assault or sexualharassment to the children should be viewed very seriously and all suchoffences of sexual assault, sexual harassment on the children have to bedealt with in a stringent manner and no leniency should be shown to aperson who has committed the offence under the POCSO Act. Byawarding a suitable punishment commensurate with the act of sexualassault, sexual harassment, a message must be conveyed to the societyat large that, if anybody commits any offence under the POCSO Act ofsexual assault, sexual harassment or use of children for pornographicpurposes they shall be punished suitably and no leniency shall be shownto them. Cases of sexual assault or sexual harassment on the childrenare instances of perverse lust for sex where even innocent children arenot spared in pursuit of such debased sexual pleasure.

Children are precious human resources of our country; they arethe country’s future. The hope of tomorrow rests on them. Butunfortunately, in our country, a girl child is in a very vulnerable position.There are different modes of her exploitation, including sexual assaultand/or sexual abuse. In our view, exploitation of children in such a manneris a crime against humanity and the society. Therefore, the children andmore particularly the girl child deserve full protection and need greater A

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Acare and protection whether in the urban or rural areas. As observedand held by this Court in the case of State of Rajasthan Vs. OmPrakash, (2002) 5 SCC 745, children need special care and protectionand, in such cases, responsibility on the shoulders of the Courts is moreonerous so as to provide proper legal protection to these children. In thecase of Nipun Saxena v. Union of India, (2019) 2 SCC 703, it isBobserved by this Court that a minor who is subjected to sexual abuseneeds to be protected even more than a major victim because a majorvictim being an adult may still be able to withstand the social ostracizationand mental harassment meted out by society, but a minor victim will findit difficult to do so. Most crimes against minor victims are not evenCreported as very often, the perpetrator of the crime is a member of thefamily of the victim or a close friend. Therefore, the child needs extraprotection. Therefore, no leniency can be shown to an accused who hascommitted the offences under the POCSO Act, 2012 and particularlywhen the same is proved by adequate evidence before a court of law.

D10.1 In the present case it is to be noted that the accused wasaged approximately 65 years of age at the time of commission of offence.He was a neighbour of the victim girl. He took advantage of the absenceof her parents, when her mother went to fetch water and her father hadgone to work. He is found to have committed aggravated penetrativesexual assault (as observed hereinabove) on a girl child aged four years,Ewhich demonstrates the mental state or mindset of the accused. As aneighbour, in fact, it was the duty of the accused to protect the victim girlwhen alone rather than exploiting her innocence and vulnerability. Thevictim was barely a four years girl. The accused – appellant was theneighbour. The accused instead of showing fatherly love, affection andFprotection to the child against the evils of the society, rather made herthe victim of lust. It is a case where trust has been betrayed and socialvalues are impaired. Therefore, the accused as such does not deserveany sympathy and/or any leniency.

However, the punishment provided for the offence under SectionG6, as it stood prior to its amendment and at the time of commission of theoffence in the instant case for aggravated penetrative sexual assaultwas rigours imprisonment for a term which shall not be less than tenyears but which may extend to imprisonment for life and shall also beliable to fine. Now as per the amended Section 6 with effect from16.08.2019, the minimum punishment provided is twenty years and whichH

may extend to imprisonment for life, which shall mean imprisonment forthe remainder of natural life of that person, and shall also be liable tofine, or with death. Therefore, at the relevant time the minimumpunishment provided for the offence under Section 6 of the POCSOAct, 2012 was ten years RI and which may extend to imprisonment forlife. It is reported that today the accused is aged 70-75 years of age andit is also reported that he is suffering from Tuberculosis (TB). Therefore,considering such mitigating circumstances we are of the opinion that ifthe life sentence is converted to fifteen years RI and the fine imposedby the Trial Court confirmed by the High Court to be maintained, it canbe said to be an adequate punishment commensurate with the offencecommitted by the accused.

11. In view of the above discussion the impugned judgment andorder passed by the High Court and the learned Special Court convictingthe accused for the offences punishable under Sections 376(2)(i) of IPCand Section 5 of the POCSO Act and imposing the punishment underSection 6 of the POCSO Act is hereby upheld. The accused is rightlyheld guilty for the aforesaid offences. However, for the reasons assignedhereinabove the sentence of life imprisonment is converted to that offifteen (15) years RI with fine/compensation imposed by the Trial Courtconfirmed by the High Court. Now the accused shall undergo fifteen(15) years RI with fine imposed by the Trial Court confirmed by theHigh Court for the aforesaid offences instead of life imprisonment. Thepresent appeal is partly allowed to the aforesaid extent only.

Devika Gujral

Appeal partly allowed.

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