Chhattisgarh High Court upholds conviction for sexual assault on 12-year-old boy, reduces whole-life POCSO sentence to 20 years

On 15 October 2019, the minor male victim, aged approximately 12 years and 11 months, alleged that the appellant took him near a cremation ground, removed his clothes, inserted his penis into the victim’s mouth, assaulted him, and threatened to kill him if he disclosed the incident.

The victim informed his parents the following day, following which the FIR was registered for offences under Sections 377 and 506 IPC and Section 4 of the POCSO Act.

The victim’s medical examination revealed an abrasion on his right forearm, while the appellant was found capable of performing sexual intercourse.

The prosecution relied, inter alia, on the victim’s statements, the Section 164 CrPC statement, school records showing his date of birth as 22 October 2006, medical evidence, and seized clothing.

The Trial Court convicted the appellant under Sections 377, 323 and 506 IPC and Section 4 of the POCSO Act, sentencing him to life imprisonment under Sections 377 IPC and 4 POCSO, with the sentences to run concurrently.

The appellant challenged both his conviction and sentence in appeal.

1. Whether the prosecution proved that the victim was below 18 years of age, and specifically below 16 years of age, on the date of the incident so as to attract the POCSO Act and Section 4(2) thereof

2. Whether the testimony of the victim, supported by the surrounding evidence, established the commission of penetrative sexual assault and the offence under Section 377 IPC beyond reasonable doubt

3. Whether the evidence established the offences under Sections 323 and 506 IPC

4. Whether the life sentences imposed under Section 377 IPC and Section 4 of the POCSO Act were legally and proportionately appropriate in the circumstances of the case

The Court applied Section 377 IPC, which criminalises voluntary carnal intercourse against the order of nature and treats penetration as sufficient to constitute the offence.

It applied Sections 3 and 4 of the POCSO Act: Section 3 includes penetration of the penis, to any extent, into a child’s mouth, while Section 4(2) prescribes a minimum sentence of twenty years where penetrative sexual assault is committed against a child below sixteen years of age.

The Court relied on Jarnail Singh v. State of Haryana, (2013) 7 SCC 263, for the principle that a child’s age may be determined primarily from reliable school or equivalent records, with medical evidence considered only in their absence.

It further relied on Childline India Foundation v. Allan John Waters, (2011) 6 SCC 261, for the ingredients of Section 377 IPC—carnal intercourse and conduct against the order of nature—and on Santosh Prasad v. State of Bihar, (2020) 3 SCC 443, concerning reliance on the consistent testimony of a “sterling witness”.

For sentencing, the Court applied the proportionality principles stated in Raj Bala v. State of Haryana, (2016) 1 SCC 463, including the requirement that punishment be just, proportionate, and based on the facts and circumstances of the offence.

The Court accepted the school record and primary school certificate recording the victim’s date of birth as 22 October 2006, noting that the entries pre-dated the incident and that the defence did not effectively challenge their correctness; the victim’s and his parents’ unrebutted evidence regarding his age further corroborated the records.

On the substantive offence, the Court found the victim’s account consistent in the FIR, his Section 164 CrPC statement, and his deposition.

His explanation that he attempted to escape, was caught and dragged, shouted for help, sustained an abrasion, and later disclosed the incident due to fear was not materially shaken in cross-examination.

The Court treated the victim as a reliable or “sterling” witness and held that his testimony did not require further corroboration, although it was supported by the parents’ evidence and the medical finding of injury.

The absence of semen or spermatozoa on the seized underwear did not undermine the prosecution case because the alleged act involved oral penetration and the victim had stated that he escaped from the spot.

The Court therefore held that the ingredients of Section 377 IPC and penetrative sexual assault under Section 3 read with Section 4 of the POCSO Act were proved.

The abrasion supported the conviction under Section 323 IPC, while the appellant’s threat to kill the victim if he disclosed the incident established Section 506 IPC.

However, considering the statutory sentencing framework and the proportionality principle, the Court found it appropriate to substitute the life sentences with fixed terms of imprisonment.

The convictions under Sections 377, 323 and 506 IPC were affirmed, and the conviction under the POCSO Act was modified to Section 4(2).

The sentence under Section 377 IPC was reduced from life imprisonment to rigorous imprisonment for ten years with a fine of ₹1,000, and the sentence under Section 4(2) of the POCSO Act was fixed at rigorous imprisonment for twenty years with a fine of ₹1,000.

The sentences under Sections 323 and 506 IPC—six months’ imprisonment and fines of ₹100 each—were maintained.

All sentences were directed to run concurrently, subject to the applicable default sentences.

The appellant, who had been in custody since 17 October 2019, was directed to serve the modified sentence, and the Registry was directed to communicate the judgment to the Jail Superintendent and return the records to the Trial Court.