Absence Of Abrasion Of 12-Yr-Old Girl's Teeth Marks On Body Of Accused Is Of No Consequence: HP High Court Upholds POCSO Conviction

While upholding the conviction of a man under the POCSO Act for sexually assaulting a 12-year-old girl, the Himachal Pradesh High Court on Tuesday observed that it is not necessary that every bite, that too of a child of 12 years old who is trying to rescue herself from the clutches of 37 years old person, would cause injury, abrasion or teeth marks on the body of the accused.

Under these circumstances, the Bench of Justice Vivek Singh Thakur held that the absence of external injury, abrasion of teeth marks on the body of the accused would be of no consequence and the same can't be the basis of acquittal of the accused.

The case in brief

Essentially, the convict/appellant had moved an appeal against the judgment/order of the Special Judge, Kangra at Dharamshala, H.P. convicting him under Section 10 of POCSO Act [Punishment for aggravated sexual assault] as well as Sections 354-A, 506, 509 IPC and sentenced to undergo rigorous imprisonment for five years.

As per the prosecution's case, the appellant/convict had caught the victim from her arm and had opened the zip of his pants, and showed his private part to the victim. The victim had managed to release herself from the clutches of the appellant by giving teeth a bite on the hand of the appellant and ran out of the room.

This incident was narrated by the victim to her Aunt (Bua), whereupon, Panchayat Pradhan Rajni Devi was informed about the incident, and thereafter, the matter was reported to the police, an FIR was registered.

Court's observations

Keeping in view the cogent, reliable, and convincing evidence of the prosecution in statements of PW.1 to PW.4 and holding that the other witnesses were formal in nature, and substantiated the prosecution case with respect to their role in the investigation, the Court found that the case was sufficiently proved against the convict/appellant. 

Further, regarding the sentence awarded to the convict, the court noted that the quantum of five years sentence awarded under Section 10 of the POCSO Act is the highest of all the offenses against whom he had been convicted.

In view of this, the Court opined that there is no scope of interference in the awarded sentence which is the prescribed sentence as it observed thus:

"There is no provision for awarding lesser sentence than the minimum prescribed sentence for offence under Section 10 of POCSO Act. Language of this Section indicates legislature's intent unambiguously that for offence punishable under Section 10 of POCSO Act minimum sentence shall not be less than five years in any case."

Therefore, taking into consideration entire facts and circumstances and evidence on record, the prayer for reducing the sentence was rejected.

Case title - Rajesh Kumar v. State of Himachal Pradesh

Citation: 2022 LiveLaw (HP) 8

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