Code of Criminal Procedure, 1973 – Section 482 – Penal Code, 1860 – Ss. 376 (2) 376 (n), 376 (3) & 506 – Protection of Children from Sexual Offences Act, 2012 – S. 6 – Information and Technology Act, 2000 – Section 67 – Parties entered into compromise – FIR Quashed.
Punishment for aggravated penetrative sexual assault
Protection of Children from Sexual Offences Act 2012 – Section 6 – Punishment for aggravated penetrative sexual assault.
Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous 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.
CASE LAW REFERENCE
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 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.
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 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, 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 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. Nawabbudin v. State of Uttarakhand [Supreme Court of India, 8 February, 2022]