Girl Child In A Very Vulnerable Position In Our Country; No Leniency For POCSO Convict: Supreme Court

The Supreme Court observed that no leniency should be shown to a person who has committed the offence under the POCSO Act.  The Court observed that children are precious human resources. However, in our country, a girl child is in a very vulnerable position, the Court lamented.

"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", the bench comprising Justices MR Shah and BV Nagarathna observed while dismissing an appeal filed by a man convicted under POCSO Act.

The prosecution case was as follows:  That on 17.06.2016 at about 5:00 pm, the mother of the victim girl had gone to fetch water and her husband was out for work. At that time, victim girl aged four years was all alone in the house. The accused who was their neighbour, 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. A  first information report was lodged by the 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.  

Later, 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. It sentenced the accused to undergo life imprisonment and also directed to pay monetary fine of Rs.50,000/­. The High Court dismissed the appeal filed by the accused.

In appeal, the accused contended that in absence of penetration and aggravated penetrative sexual assault, the accused could not have been convicted for the offences punishable under Section 5/6 of the POCSO Act. To reject this contention, the  bench noted Section 3 of the POCSO Act which   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. The court noted that  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", the court said.

The accused then requested the court 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.

The court observed that the POCSO Act, 2012 has been enacted 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 court made the following observations:

Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex

"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.", the court said.

No leniency can be shown to accused

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  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

The court observed that, as a neighbour, it was the duty of the accused to protect the victim girl when alone rather than exploiting her innocence and vulnerability. "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.", the bench said.

However, the court noted that, at the relevant time the minimum punishment provided for the offence under Section 6 of the POCSO Act, 20 2012 was ten years RI and which may extend to imprisonment for life. The court also noticed that the accused is aged 70­75 years of age and 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.", the court said while disposing the appeal.

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