Nawabuddin vs State of Uttarakhand

Sentence/Sentencing: Offence against children of sexual nature – Punishment for – Held: Any act of sexual assault or sexual harassment to the children should be viewed very seriously and all such offences of sexual assault, sexual harassment on the children have to be dealt with in a stringent manner and no leniency should be shown to a person who has committed the offence under the POCSO Act – By awarding a suitable punishment commensurate with the act of sexual assault or sexual harassment, a message must be conveyed to the society at large that, if anybody commits any offence under the POCSO Act of sexual assault, sexual harassment or use of children for pornographic purposes they shall be punished suitably and no leniency shall be shown to them – Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure – Exploitation of children in such a manner is a crime against humanity and the society – Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas – No leniency can be shown to an accused commits the offences under the POCSO Act, 2012 – Protection of Children from Sexual Offences Act, 2012.

Sentence/Sentencing: Accused held guilty for committing ‘aggravated penetrative sexual assault’ – Plea for leniency in sentencing – Held: Accused was aged 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 absence of her parents, when her mother went to fetch water and her father had gone to work – He was found to have committed aggravated penetrative sexual assault on a girl child aged four years, which demonstrates the 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 alone rather than exploiting her innocence and vulnerability – He instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust – It is a case where trust has been betrayed and social values are impaired – Therefore, the accused as such does not deserve any sympathy and/or any leniency – At the relevant time, the minimum punishment provided for the offence under s.6 of the POCSO Act, 2012 was ten years RI and which may extend to imprisonment for life – Accused is aged 70-75 years of age and is suffering from Tuberculosis (TB) – Therefore, considering such mitigating circumstances, life sentence is converted to fifteen years RI – The fine imposed by the Trial Court confirmed by the High Court is maintained – Protection of Children from Sexual Offences Act, 2012.

Partly allowing the appeal, the Court

HELD: 1. There are concurrent findings recorded by both the Courts below, recorded on appreciation of evidence on record to the effect that the accused tried to commit the offence of rape on the victim girl aged four years. It has been established and proved by the prosecution that the victim girl was lured by the appellant – accused; she was taken to the bushes; accused removed his own clothes as well as the clothes of the victim girl and fondled her private parts and penetrated his finger into the vagina of the victim girl. The same is fully supported by the doctor – PW-10, who examined the victim girl and before whom the victim girl narrated the entire incident to her which was recorded in medical examination report. As per PW-10 who is an independent witness, the victim girl told her that the accused tried to penetrate his finger and therefore she felt pain and irritation in urination as well as she also felt pain in her body. As per PW-10 there was redness and swelling around the vagina. Though the other witnesses who seem to have been won over might not have supported the case of the prosecution, there is no reason to doubt the deposition of PW-10. There are no allegations on behalf of the accused that there was any enmity with PW-10. Therefore, it is safe to convict the accused relying upon the deposition of PW-10 before whom the victim girl narrated the entire incident which 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, any object of a part of the body, not being the penis, into the vagina. Section 5 of the Act defines ‘aggravated penetrative sexual assault’ and as per Section 5(m) whoever commits penetrative sexual assault on a child below twelve years it is aggravated penetrative sexual assault. In the present case, it has been established and proved that the accused penetrated his finger in the vagina and because of that 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. Therefore the case would fall under Section 3(b) of the POCSO Act and it can be said to be penetrative sexual assault and considering Section 5(m) of the POCSO Act as such penetrative sexual assault was committed on a girl child aged four years (below twelve years) the same can be said to be ‘aggravated penetrative sexual assault’ punishable under Section 6 of the POCSO Act. Therefore, both, the Trial Court as well as the High Court have rightly convicted the accused for the offences under Section 5 of the POCSO Act punishable under Section 6 of the POCSO Act. [Para 8][1093-H; 1094-A-D]

3. It can be seen from the Statement of objects and reasons of the POCSO Act that since the sexual offences against children were not adequately addressed by the existing laws and a large number of such offences were neither specifically provided for nor were they adequately penalised, the POCSO Act has been enacted to protect the children from the offences of sexual assault, sexual harassment and pornography and to provide for establishment of special courts for trial of such offences and for matters connected therewith and incidental thereto. [Para 9.3][1096-B-D]

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

4. The POCSO Act has been enacted keeping in mind Article 15 and 39 of the Constitution of India. Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. To achieve the goal as per Article 15 and 39 of the Constitution, the legislature has enacted the Protection of Children from Sexual Offences Act, 2012.As noted in the Statement of objects and reasons, as per the United Nations Convention on the Rights of Children, to which India is a signatory to the treaty, the State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials. The general comment No.13 on the Convention specifically dealt with the right of the child to freedom from all forms of violence and it has observed that “no violence against children is justifiable; all violence against children is preventable” [Paras 9.4, 9.5][1096-D-G]

5. By awarding a suitable punishment commensurate with the act of sexual assault, sexual harassment, a message must be conveyed to the society at large that, if anybody commits any offence under the POCSO Act of sexual assault, sexual harassment or use of children for pornographic purposes they shall be punished suitably and no leniency shall be shown to them. Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure. Exploitation of children in such a manner is a crime against humanity and the society. Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas. No leniency can be shown to an accused who has committed the offences under the POCSO Act, 2012 and particularly when the same 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.

6. In the present case, the accused was aged 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 absence of her parents, when her mother went to fetch water and her father had gone to work. He is found to have committed aggravated penetrative sexual assault on a girl child aged four years, which demonstrates the 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 alone rather than exploiting her innocence and vulnerability. The victim was barely a four years girl. He instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust. It is a case where trust has been betrayed and social values are impaired. Therefore, the accused as such does not deserve any sympathy and/or any leniency. [Para 10.1][1098-D-G]

7. However, the punishment provided for the offence under Section 6, as it stood prior to its amendment and at the time of commission of the offence in the instant case for aggravated penetrative sexual assault was rigours imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. Now as per the amended Section 6 with effect from 16.08.2019, the minimum punishment provided is twenty years and which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death. Therefore, at the relevant time, the minimum punishment provided for the offence under Section 6 of the POCSO Act, 2012 was ten years RI and which may extend to imprisonment for life. It is reported that today the accused is aged 70-75 years of age and it is also reported that he is suffering from Tuberculosis (TB). Therefore, considering such mitigating circumstances if the life sentence is converted to fifteen years RI and the fine imposed by the Trial Court confirmed by the High Court to be maintained, it can be said to be an adequate punishment commensurate with the offence committed by the accused. [Para 10.1][1098-G-H; 1099-A-C]