Little girl in a very vulnerable position in our country; No leniency for POCSO Convict: Supreme Court

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The Supreme Court observed that no leniency should be granted to a person who committed the offense under the POCSO Act. The Court observed that children are valuable human resources. However, in our country, a young girl is in a very vulnerable position, deplored the Court.

“By providing an appropriate sentence commensurate with the act of sexual assault, sexual harassment, a message must be sent to society as a whole that if someone commits an offense under the POCSO Sexual Assault Act , sexual harassment or use of children for pornographic purposes, they will be punished appropriately and no leniency will be shown to them”, the bench comprising Judges MR Shah and BV Nagarathna observed during the rejection of an appeal filed by a man convicted under the POCSO Act.

The prosecution case was as follows: That on 17.06.2016 around 5:00 p.m., the mother of the victim girl went to fetch water and her husband was at work. At that time, the four-year-old girl victim was alone in the house. The accused, who was their neighbor, lured and took the victim girl into the bushes to rape her. However, at this time, the accused was spotted by naked people raping the girl victim. The accused and the girl victim were stripped naked. The people who had gathered around caught the accused in the act and handed him over to the police. A first information report was filed by the mother of the girl victim for the offenses punishable by articles 376 read with 511 of the CPI and article 3/4 of the POCSO law.

The trial court later found the defendant guilty of the offenses punishable under Section 376(2)(i) of the ICC and Section 6 of the POCSO Act of 2012. It sentenced the accused to life imprisonment and also ordered to pay a fine of 50,000 rupees/. The High Court dismissed the accused’s appeal.

On appeal, the accused argued that in the absence of penetration and aggravated penetrative sexual assault, the accused could not have been convicted of the offenses punishable under article 5/6 of the POCSO law. To dismiss this claim, the bench noted Section 3 of the POCSO Act which defines “penetrative sexual assault.” Under Section 3 of the Act, a person is deemed to have committed “penetrative sexual assault” if (b) they insert, to any degree, an object from any part of the body, other than the penis , in the vagina. The court noted that Section 4 provides “punishment for penetrative sexual assault.” Section 5 of the Act defines “aggravated penetrative sexual assault” and according to section 5(m), anyone who commits a penetrative sexual assault on a child under the age of twelve is a penetrative sexual assault. aggravated. Article 6 provides for a “penalty for sexual assault with aggravated penetration”.

“In the present case, it was established and proven that the defendant penetrated his finger into the vagina and because of this, the victim girl felt pain and irritation while urinating as well as pain on her body and there was redness and swelling around the vagina We are of the view that therefore the matter would fall under section 3(b) of the POCSO Act and can be said to be of a penetrative sexual assault and POCSO Section 5(m) is considered penetrative a sexual assault was committed on a four-year-old girl (under the age of twelve), the same may be considered as an “aggravated penetrative sexual assault” punishable under Section 6 of the POCSO Act. Accordingly, both the trial court and the High Court correctly convicted the accused of the offenses referred to in Section 6 of the POCSO Act. Section 5 of the POCSO Act punishable under Section 6 of the POCSO Act“, said the court.

The accused then asked the court to adopt a lenient attitude in the matter by taking into account the mitigating circumstances of the accused’s old age and to modify the life imprisonment in any other sentence.

The court observed that the POCSO Act of 2012 was enacted to achieve what was intended in Sections 15 and 39 of the Constitution to protect children from the offenses of sexual assault and sexual harassment. The court made the following observations:

Cases of sexual assault or sexual harassment of children are examples of perverse sexual desire

“Any act of sexual assault or sexual harassment against children must be taken very seriously and all such offenses of sexual assault, sexual harassment against children must be dealt with strictly and no leniency should be given to any person who committed the offense under the POCSO Act By imposing an appropriate sentence commensurate with the act of sexual assault, sexual harassment, a message should be sent to society as a whole that if someone commits an offense under the POCSO Act of sexual assault, harassment, or the use of children for pornography, they will be punished appropriately and no leniency will be shown to them. on children are examples of perverse sexual desire where even innocent children are not spared in the pursuit of such degraded sexual pleasure.”, the court said.

No leniency can be shown to the accused

Children are precious human resources of our country; they are the future of the country. The hope of tomorrow rests on them. But unfortunately, in our country, a girl child is in a very vulnerable position. There are different modes of exploitation, including sexual assault and/or sexual abuse. In our opinion, the exploitation of children in this way is a crime against humanity and society. Therefore, children and especially the girl child deserve full protection and need more care and protection whether in urban or rural areas. As observed and held by this Court in State of Rajasthan Vs. Om Prakash, (2002) 5 SCC 745, children need special care and protection and in such cases the responsibility of courts is more onerous to provide adequate legal protection to these children. In Nipun Saxena v. Union of India, (2019) 2 SCC 703, it is observed by this Court that a minor who is a victim of sexual abuse should be protected even more than an adult victim because an adult victim being an adult can still be able to resist social ostracism and moral harassment inflicted by society, but an underage victim will find it difficult to do so. Most crimes against child victims are not even reported because very often the perpetrator is a family member of the victim or a close friend. Therefore, the child needs additional protection. Therefore, no leniency can be shown to a defendant who has committed the offenses under the POCSO Act 2012 and particularly when proven by adequate evidence in court.

The court observed that as a neighbour, it was the defendant’s duty to protect the girl victim when he was alone rather than exploiting her innocence and vulnerability. “The accused instead of showing paternal love, affection and protection of the child from the evils of society, instead made him a victim of lust. This is a case where trust has been betrayed and social values ​​are altered. Therefore, the defendant as such deserves no sympathy and/or indulgence.”said the bench.

However, the court noted that at the relevant time, the minimum penalty provided for the offense under Article 6 of the POCSO Act of 20 2012 was ten years RI and could go as far as imprisonment at perpetuity. The court also found that the defendant is between 70 and 75 years old and has tuberculosis (TB).

“Therefore, in view of these mitigating circumstances, we are of the view that if the sentence of life imprisonment is converted to fifteen years RI and the fine imposed by the trial court upheld by the High Court should stand , it can be said that it is an adequate sentence proportionate to the offense committed by the accused”.the court said in ruling on the appeal.

Case name

Nawabuddin v State of Uttarakhand

Quote 2022 LiveLaw (SC) 142
Case n°|date CrA 144 OF 2022 | February 8, 2022
Coram Judges MR Shah and BV Nagarathna
advice Adv Saju Jacob for the Appellant, Adv Krishnam Mishara for the Respondent State
Case law

Protection of Children from Sexual Offenses Act 2012 – No leniency may be granted to a defendant who has committed the offenses under the POCSO Act 2012 and particularly where proved by adequate evidence in court – By providing an appropriate sentence commensurate with the act of sexual assault, sexual harassment, a message must be sent to society as a whole that if someone commits an offense under the POCSO law of sexual assault, of sexual harassment or use of children for pornographic purposes, he must be punished appropriately and no leniency will be shown to them. (Paragraph 10)

Protection of Children from Sexual Offenses Act 2012 – Section 3(b) – Penetrative Sexual Assault – Where it has been established and proved that the accused has penetrated his or her finger into the vagina and as a result , the victim girl felt pain and irritation in urination as well as pain on her body and there was redness and swelling around the vagina found by the doctor, the case would fall under article 3 ( b) the POCSO law. (Paragraph 8)

Protection of Children from Sexual Offenses Act 2012 – Any act of sexual assault or sexual harassment of children should be taken very seriously and all offenses of sexual assault, sexual harassment of children should be dealt with Strictly – Cases of sexual assault or sexual harassment of children are examples of perverted sexual desire where even innocent children are not spared in the pursuit of such degraded sexual pleasure. (Paragraph 10)

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