Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.144 OF 2022
Nawabuddin ..Appellant(S)
Versus
State of Uttarakhand ..Respondent(S)
J U D G M E N T
M. R. Shah, J.
1.
Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 22.08.2019 passed by the High
Court of Uttarakhand at Nainital in Criminal Appeal No.
280 of 2018 by which the High Court has dismissed the
said appeal preferred by the accused – appellant herein
and has confirmed the conviction of the accused for the
offences punishable under Sections 376(2)(i) of IPC and
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2022.02.08
16:29:04 IST
Reason:
Section 5/6 of the Protection of Children From Sexual
Offences Act, 2012 (hereinafter referred to as “POCSO
1
Act”), the original accused has preferred the present
appeal.
2. That as per the case of the prosecution on 17.06.2016 at
about 5:00 pm, the first informant (PW1) had gone to
fetch water and her husband was out for work. At that
time, her daughter (victim girl) aged four years was all
alone in the house. The accused – appellant herein who
was a neighbour of PW1, enticed and took the victim girl
in the bushes to rape her. However, at that time the
accused was spotted by some persons naked in the
process of raping the victim girl. The accused and the
victim girl were disrobed. The people who had gathered
around caught the accused red handed and handed him
over to the police. That a first information report was
lodged by PW1 – mother of the victim girl for the offences
punishable under Sections 376 read with 511 of IPC and
Section 3/4 of the POCSO Act. The victim girl was
medically examined by PW10 – Dr. Vandana Sundriyal on
17.06.2016. During the course of investigation the
statement of the victim girl as well as the witnesses were
recorded. After conclusion of the investigation the
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investigating officer filed the chargesheet against the
accused for the offences punishable under Section 376(2)
(F) of IPC and Section 3/4 of the POCSO Act. The charges
were framed against the accused for the offences
punishable under Section 376(2)(i) of IPC and Section 5/6
of the POCSO Act. The accused denied the charges and
claimed to be tried. Therefore, he was tried by the learned
Special Judge (POCSO Act) for the aforesaid offences.
2.1 To prove the charges against the accused and to prove the
case, the prosecution examined as many as thirteen
witnesses including PW1 – mother of the victim girl and
PW10 – Dr. Vandana Sundriyal who examined the victim
girl on 17.06.2016. After closure of the prosecution
evidence, statement of the accused under Section 313 of
Cr.PC was recorded. His case was of total denial. On
appreciation of evidence and more particularly relying
upon the deposition of PW10 Dr. Vandana Sundriyal
before whom the victim girl narrated the entire incident,
the Trial Court held the accused guilty for the offences
punishable under Section 376(2)(i) of IPC and Section 6 of
the POCSO Act, 2012. The Trial Court sentenced the
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accused to undergo life imprisonment and also directed to
pay monetary fine of Rs.50,000/. The Trial Court also
passed 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
judgment and order of conviction and sentence passed by
the learned Trial Court/Special Judge (POCSO Act), the
accused preferred an appeal before the High Court. Before
the High Court, amongst other grounds, one of the
grounds was that the case would not fall under Section
5/6 of the POCSO Act and at the most the case may fall
under Section 7/8 of the POCSO Act as there was no
penetration and at the most and even as per the case of
the prosecution the accused had tried to commit the rape.
By the detailed impugned judgment and order, the High
Court has dismissed the said appeal and has confirmed
the conviction of the accused and the sentence of life
imprisonment. Feeling aggrieved and dissatisfied with the
impugned judgment and order passed by the High Court,
the accused has preferred the present appeal.
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4. Shri Saju Jacob, learned counsel appearing on behalf of
the accused – appellant has vehemently submitted that in
the facts and circumstances of the case the High Court
has committed a grave error in dismissing the appeal and
confirming the judgment and order of conviction passed by
the learned Trial Court convicting the accused for the
offences punishable under Section 5/6 of the POCSO Act.
4.1 It is submitted that in fact the witnesses have not
supported the case of the prosecution. It is submitted that
the accused could not have been convicted on the sole
testimony of PW10 Dr. Vandana Sundriyal.
4.2 It is further submitted by learned counsel appearing on
behalf of the accused that even in the present case so
called recording of the incident in the mobile has not been
established and proved by the prosecution by leading any
cogent evidence.
4.3 It is further submitted by learned counsel appearing on
behalf of the accused that even as per the prosecution
case, it was only an attempt of aggravated sexual assault.
It is submitted that in absence of penetration and
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aggravated penetrative sexual assault, the appellant could
not have been convicted for the offences punishable under
Section 5/6 of the POCSO Act.
4.4 It is vehemently contended by learned counsel appearing
on behalf of the accused that even considering the
prosecution case as it is, at the most the case would fall
under sexual assault punishable under Section 8 of the
POCSO Act. It is urged that in any case the case would not
fall under aggravated penetrative sexual assault.
4.5 In the alternative, it is submitted by learned counsel
appearing on behalf of the accused that at the time of the
alleged incident accused was aged approximately 65 years
of age and as on today he is 75 years of age. It is
submitted that as per Section 6 of the POCSO Act as it
stood on the date of incident the minimum sentence
provided was ten years but which may extend to
imprisonment for life. It is therefore submitted that
imposing life sentence is too harsh and disproportionate to
the offence committed. Therefore, it is prayed to impose a
lesser punishment than the life imprisonment.
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5. Shri Krishnam Mishara, learned counsel appearing on
behalf of the State of Uttarakhand, while opposing the
present appeal has vehemently submitted that in the
present case as such the prosecution has proved the case
beyond doubt. It is submitted that PW10 Dr. Vandana
Sundriyal who is an independent witness has fully
supported the case of the prosecution.
5.1 It is further contended by learned counsel appearing on
behalf of the State that this is a case of penetrative sexual
assault as defined under Section 3(b) of the POCSO Act. It
is submitted that as per Section 5(m) whoever commits
penetrative sexual assault on a child below twelve years, it
can be said to be an aggravated penetrative sexual assault
punishable under Section 6 of the POCSO Act.
5.2 It is urged by learned counsel appearing on behalf of the
State that 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 finger and then tried to commit
rape on the minor girl. However, before he could succeed
in committing rape, he was caught red handed by the local
persons. It is submitted that the entire incident was
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narrated by the victim girl to Dr. Vandana Sundriyal – PW
10. It is therefore submitted that when the accused
misused his position as a neighbour and committed the
offence under the POCSO Act upon a girl aged four years
and looking to the object and purpose for which the
POCSO Act has been enacted, no leniency should be
shown to the accused. It is submitted that in the facts and
circumstances of the case the accused does not deserve
any sympathy or any leniency.
5.3 Making the above submissions it is prayed to dismiss the
present appeal.
6. We have heard the learned counsel appearing on behalf of
the respective parties at length.
7. At the outset it is required to be noted that 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
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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 Dr. Vandana Sundriyal – PW
10, who examined the victim girl on 17.06.2016 and before
whom the victim girl narrated the entire incident to her
which was recorded in exhibit A6 – medical examination
report. As per Dr. Vandana Sundriyal – PW10 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 PW10 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, we see no reason to doubt the
deposition of PW10 Dr. Vandana Sundriyal, who is an
independent witness. There are no allegations on behalf of
the accused that there was any enmity with Dr. Vandana
Sundriyal. Therefore, we are of the opinion that it is safe to
convict the accused relying upon the deposition of PW10
Dr. Vandana Sundriyal before whom the victim girl
narrated the entire incident which was recorded in the
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medical examination report namely exhibit A6. Thus, it
has been established and proved by the prosecution that
the accused took the victim girl away from the house; took
her deep into the bushes; disrobed her and removed his
clothes as well; penetrated his finger in the vagina, due to
which the victim girl felt pain and irritation in urination
and he was about to force himself upon her and commit
the offence of rape when he was caught red handed.
7.1 Now the next question which is posed for the consideration
of this Court is, what offence the accused had committed.
The Trial Court convicted 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 of the accused
that at the most it can be said to be an attempt to commit
penetrative sexual assault and therefore at the most it can
be said to be the case of sexual assault under Section 7 of
the POCSO Act punishable under Section 8 of the POCSO
Act. Therefore, it is the case on behalf of the accused that
as it is neither a case of penetrative sexual assault nor
aggravated penetrative sexual assault, therefore the
punishment of life imprisonment imposed was not
10
warranted and at the highest he could have been punished
with imprisonment of either description for a term which
shall not be less than three years but which may extend to
five years, and shall also be liable to fine.
8. While appreciating the aforesaid submissions the relevant
provisions of the POCSO Act are required to be referred to
and considered. Section 3 of the POCSO Act defines
‘penetrative sexual assault’. 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 4
provides ‘punishment for penetrative sexual assault’.
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. Section 6
provides ‘punishment for 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
11
redness and swelling around the vagina found by the
doctor. We are of the opinion that 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.
9.
Now in so far as the prayer on behalf of the accused –
appellant herein to take a lenient view in the matter by
considering mitigating circumstances of old age of the
accused and to alter the life imprisonment to any other
punishment is concerned, the same has to be considered
in light of the object and purpose of enactment of the
POCSO Act.
9.1
In the case of Eera Vs. State (NCT of Delhi) , (2017) 15
SCC 133, this Court has observed on the Statement and
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Objects and Reasons of POCSO Act in para 20 as under:
“20. The purpose of referring to the Statement of
Objects and Reasons and the Preamble of
the Pocso Act is to appreciate that the very purpose of
bringing a legislation of the present nature is to
protect the children from the sexual assault,
harassment and exploitation, and to secure the best
interest of the child. On an avid and diligent
discernment of the Preamble, it is manifest that it
recognises the necessity of the right to privacy and
confidentiality of a child to be protected and respected
by every person by all means and through all stages of
a judicial process involving the child. Best interest and
wellbeing are regarded as being of paramount
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 abuse are heinous
offences and need to be effectively addressed. The
Statement of Objects and Reasons provides regard
being had to the constitutional mandate, to direct its
policy towards securing that the tender age of children
is not abused and their childhood is protected against
exploitation and they are given facilities to develop in a
healthy manner and in conditions of freedom and
dignity. There is also a mention which is quite
significant that interest of the child, both as a victim
as well as a witness, needs to be protected. The stress
is on providing childfriendly procedure. Dignity of the
child has been laid immense emphasis in the scheme
of legislation. Protection and interest occupy the
seminal place in the 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 that the Pocso Act is a gender neutral
legislation. This Act has been divided into various
chapters and parts therein. Chapter II of the Act titled
“Sexual Offences Against Children” is segregated into
five 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”
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whereas Section 4 lays down the punishment for the
said offence. Likewise, Part B of the said Chapter
titled “Aggravated Penetrative Sexual Assault and
Punishment therefor” contains two sections, namely,
Section 5 and Section 6. The various subsections of
Section 5 copiously deal with various situations,
circumstances and categories of persons where the
offence of penetrative sexual assault would take the
character of the offence of aggravated penetrative
sexual assault. Section 5( k ), in particular, while laying
emphasis on the mental stability of a child stipulates
that where an offender commits penetrative sexual
assault on a child, by taking advantage of the child's
mental or physical disability, it shall amount to an
offence of aggravated penetrative sexual assault.”
. Speaking about the child, a threeJudge Bench
“20
in (1996) 6 SCC 756
M.C. Mehta v. State of T.N.
“1. … “child is the father of man”. To enable
fathering of a valiant and vibrant man, the child must
be groomed well in the formative years of his life. He
must receive education, acquire knowledge of man
and materials and blossom in such an atmosphere
that on reaching age, he is found to be a man with a
mission, a man who matters so far as the society is
concerned.”
9.3 As it can be seen from the Statement of objects and
reasons of the POCSO Act 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
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and for matters connected therewith and incidental
thereto.
9.4 At this stage, it is required to be noted that 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.
9.5 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
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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.
Article 19 of the Convention states the following:
1. States Parties shall take all appropriate
legislative, administrative, social and
educational measures to protect the child from
all form/s of physical or mental violence, injury
or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual
abuse, while in the care of parent(s), legal
guardian(s) or any other person who has the
care of the child.
2.
Such protective measures should, as
appropriate, include effective procedures for the
establishment of social programmes to provide
necessary support for the child and for those
who have the care of the child, as well as for
other forms of prevention and for identification,
reporting, referral, investigation, treatment and
followup of instances of child maltreatment
described heretofore, and, as appropriate, for
judicial involvement.
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”
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10. Keeping in mind the aforesaid objects and to achieve what
has been provided under Article 15 and 39 of the
Constitution to protect children from the offences of sexual
assault, sexual harassment, the POCSO Act, 2012 has
been enacted. 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, 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.
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Children are precious human resources of our country;
they are the country’s future. 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
her exploitation, including sexual assault and/or sexual
abuse. In our view, 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. As
observed and held by this Court in the case of State of
Rajasthan Vs. Om Prakash , (2002) 5 SCC 745, children
need special care and protection and, in such cases,
responsibility on the shoulders of the Courts is more
onerous so as to provide proper legal protection to these
children. In the case of Nipun Saxena v. Union of India,
(2019) 2 SCC 703, it is observed by this Court that a minor
who is subjected to sexual abuse needs to be protected
even more than a major victim because a major victim
being an adult may still be able to withstand the social
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ostracization and mental harassment meted out by society,
but a minor victim will find it difficult to do so. Most
crimes against minor victims are not even reported as very
often, the perpetrator of the crime is a member of the
family of the victim or a close friend. Therefore, the child
needs extra protection. Therefore, 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.
10.1 In the present case it is to be noted that 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 (as observed hereinabove) 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. The
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accused – appellant was the neighbour. The accused
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.
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,
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2012 was ten years RI and which may extend to
imprisonment for life. It is reported that today the accused
is aged 7075 years of age and it is also reported that he is
suffering from Tuberculosis (TB). Therefore, considering
such mitigating circumstances we are of the opinion that 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.
11. In view of the above discussion the impugned judgment
and order passed by the High Court and the learned
Special Court convicting the accused for the offences
punishable under Sections 376(2)(i) of IPC and Section 5 of
the POCSO Act and imposing the punishment under
Section 6 of the POCSO Act is hereby upheld. The accused
is rightly held guilty for the aforesaid offences. However,
for the reasons assigned hereinabove the sentence of life
imprisonment is converted to that of fifteen (15) years RI
with fine/compensation imposed by the Trial Court
confirmed by the High Court. Now the accused shall
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undergo fifteen (15) years RI with fine imposed by the Trial
Court confirmed by the High Court for the aforesaid
offences instead of life imprisonment. The present appeal
is partly allowed to the aforesaid extent only.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(B.V. NAGARATHNA)
New Delhi,
th
February, 08 2022
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