Amended POCSO minimum sentence provisions cannot apply retrospectively to offences committed before amendment.

The prosecution arose from Bodhgaya P.S. Case No. 109 of 2017.

The victim’s mother alleged that on 15 February 2017, the appellant lured her approximately six-year-old daughter from near Tola Sevak School by offering her money and chocolate, took her to the bank of a pyne, and committed rape.

The appellant was chargesheeted and tried under Section 376 IPC and Section 6 of the POCSO Act.

The trial court convicted the appellant under Section 376 IPC and Section 6 of the POCSO Act and sentenced him to twenty years’ rigorous imprisonment with a fine of ₹10,000, with six months’ rigorous imprisonment in default.

Whether the prosecution proved beyond reasonable doubt that the appellant committed aggravated penetrative sexual assault/rape upon the minor victim, notwithstanding the alleged inconsistencies, absence of an eyewitness, and the medical opinion that rape was not certain?

Whether the trial court could impose the amended minimum sentence of twenty years under Section 6 of the POCSO Act when the occurrence took place before the amendment came into force?

The Court applied Section 376 IPC and Section 6 of the POCSO Act to the alleged rape and aggravated penetrative sexual assault of the minor.

Section 29 of the POCSO Act requires a presumption against the accused once the foundational facts establishing the commission of the offence are proved, shifting the evidentiary burden to the accused to rebut the presumption on a preponderance of probability.

Section 42 of the POCSO Act governs overlapping punishment under the IPC and the POCSO Act, thereby avoiding a separate sentence for the IPC offence in the present case.

The Court further applied the principle that an amended penal provision increasing the minimum punishment cannot be retrospectively applied to an offence committed before the amendment; consequently, the pre-amendment version of Section 6, prescribing a minimum of ten years’ rigorous imprisonment, governed the case.

The Court found the victim competent to testify and treated her identification of the appellant and account of the “dirty act” as credible and substantially consistent.

Her evidence was corroborated by the mother’s testimony regarding the child’s immediate return while crying and bleeding, by PW-4’s evidence placing the appellant near the school where the victim was playing, and by the medical and FSL evidence showing genital injury/inflammation, blood, and semen on the victim’s frock.

The Court held that minor discrepancies concerning how the child returned home were immaterial and that the defence’s inconsistent cross-examination did not create a credible alternative version or rebut the Section 29 presumption.

However, because the offence occurred on 15 February 2017, before the 16 August 2019 amendment raising the minimum sentence under Section 6 to twenty years, the trial court’s sentence was legally excessive.

Considering the applicable statutory minimum of ten years and the circumstances urged on behalf of the appellant, the Court reduced the sentence to twelve years’ rigorous imprisonment.

No separate sentence was imposed under Section 376 IPC in view of Section 42 of the POCSO Act.

The sentence under Section 6 of the POCSO Act was modified from twenty years to twelve years’ rigorous imprisonment, with a fine of ₹10,000; in default of payment, the appellant must undergo a further six months’ rigorous imprisonment.

The appeal was partly allowed.