Conviction Under Wrong Provision Of POCSO Act: Patna High Court Orders Release Of Sexagenarian After 10 Years, Enhances Victim's Compensation

The Patna High Court has ordered the release of a man in his sixties, previously convicted by a Sessions Court for the rape of his 12-year-old niece, citing the application of a wrong provision of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The court held that the trial court erroneously sentenced the appellant under Section 6 of the Act, which was not applicable to the offense committed in 2014.

The division bench, comprising Justices Jitendra Kumar and Ashutosh Kumar observed, “we find that learned Trial Court has applied wrong statutory provisions to punish the convict/appellant by sentencing him under Section 6 of the POCSO Act and sentencing him to rigorous imprisonment for the remainder of natural life. Learned Trial Court has not noticed the facts that the alleged offence has been committed in the year 2014 and at that time there was no such punishment in Section 6 of the Act.”

“Moreover, as per the provisions of Sections 4 and 6 of the POCSO Act, we find that the present case is covered under Section 4 of the POCSO Act and not under Section 6 of the POCSO Act, because the victim has been found to be above 12 years of age and hence, penetrative sexual assault committed against her does not come under aggravated penetrative sexual assault as defined under Section 5 of the POCSO Act,” the bench added.

The bench pointed out that as per Section 5 of the POCSO Act, penetrative sexual assault only on the child below 12 years of age comes in the category of aggravated penetrative sexual assault. If the victim child is above 12 years of age, the penetrative sexual assault is punishable under Section 4 of the POCSO Act.

“Moreover, as per Section 4 of the POCSO Act as existed prior to the amendment in 2019, penetrative sexual assault is punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to imprisonment for life and shall also be liable to fine. The penetrative sexual assault committed against the victim also comes under Section 376(1) of the I.P.C. which also provides for the same punishment as provided under Section 4 of the POCSO Act, prior to its amendment in 2019,” the bench added.

The prosecution's case, as outlined in the informant's written report, stated that the appellant, an agnate of the victim's family, took his 10-year-old niece to Banaras under the pretext of assisting his daughter, who was expecting a child. In Banaras, the appellant allegedly hit the niece after administering an intoxicant.

The appellant was sentenced by the Sessions Court to undergo rigorous imprisonment for the remainder of natural life and to pay a fine of Rs.50,000/- under Section 6 of the POCSO Act.

The Court ruled that while the appellant had been sentenced to 10 years of imprisonment, the period already spent in custody since May 20, 2014, was sufficient to meet the ends of justice.

“In view of the total facts and circumstances of the case, particularly the old age of the appellant, imprisonment of the appellant for 10 years would meet the ends of justice whereas the appellant has been already in custody for more than 10 years since 20.05.2014. Hence, he is sentenced to the period already spent in custody,” the court held.

While noting that the Trial Court had directed compensation of Rs. 4,00,000/- to the victim, payable by the District Legal Services Authority (DSLSA), the Court decided to enhance this amount by Rs. 1,00,000/- considering the victim's age. The District Legal Services Authority was directed to pay the increased compensation within two months.

Furthermore, the Court upheld the fine of Rs. 50,000/- imposed by the Trial Court on the appellant, with the amount to be paid to the victim.

Consequently, the appeal was allowed, and the appellant was directed to be released.

Case Title: Md. Mahmood Alam vs The State of Bihar

LL Citation: 2024 LiveLaw (Pat) 110

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