Supreme Court Reduces Sentence in POCSO Case: Nawabuddin vs. State of Uttarakhand (2022)

Date of the Judgment: 08 February 2022

Citation: Criminal Appeal No. 144 of 2022

Judges: M.R. Shah, J., B.V. Nagarathna, J.

Can a finger inserted into a child’s vagina constitute “penetrative sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act, 2012? The Supreme Court of India addressed this critical question in a recent judgment, clarifying the scope of the Act and its application in cases involving digital penetration. This case involved an appeal against the conviction and life sentence of an accused found guilty of sexually assaulting a four-year-old girl. The Supreme Court, while upholding the conviction, reduced the sentence to 15 years of rigorous imprisonment, taking into account the age and health condition of the accused. The judgment was delivered by a bench comprising Justices M.R. Shah and B.V. Nagarathna, with Justice M.R. Shah authoring the opinion.

Case Background

On June 17, 2016, a four-year-old girl was alone at home when her neighbor, the accused, lured her into nearby bushes. The accused, after removing his and the child’s clothes, proceeded to sexually assault her. He inserted his finger into her vagina. Some people spotted the accused and the victim in the act and apprehended him. The victim’s mother, PW-1, filed a First Information Report (FIR). The victim was medically examined by PW-10, Dr. Vandana Sundriyal, who noted redness and swelling around the vagina. The accused was charged under Section 376(2)(i) of the Indian Penal Code (IPC) and Sections 5/6 of the POCSO Act.

Timeline

Course of Proceedings

The Trial Court convicted the accused under Section 376(2)(i) of the Indian Penal Code and Section 6 of the POCSO Act, sentencing him to life imprisonment and a fine of Rs. 50,000, with Rs. 30,000 to be paid to the victim as compensation. The High Court of Uttarakhand dismissed the accused’s appeal, upholding the conviction and sentence. The High Court also considered the argument that the case should fall under Section 7/8 of the POCSO Act instead of Section 5/6, but rejected it. The accused then appealed to the Supreme Court.

Legal Framework

The Supreme Court examined the relevant provisions of the POCSO Act, 2012:
✓ Section 3(b) of the POCSO Act: Defines “penetrative sexual assault” as the insertion, to any extent, of any object or part of the body (not being the penis) into the vagina.

✓ Section 5(m) of the POCSO Act: States that committing penetrative sexual assault on a child below twelve years constitutes “aggravated penetrative sexual assault.”

✓ Section 6 of the POCSO Act: Prescribes punishment for aggravated penetrative sexual assault. At the time of the incident, the punishment was rigorous imprisonment for a term not less than ten years, which may extend to life imprisonment, and a fine. After amendment on 16.08.2019, the minimum punishment is twenty years which may extend to life imprisonment or death.

The Court also referred to Article 15 and 39 of the Constitution of India, which empower the State to make special provisions for children and direct its policy to protect children from abuse and exploitation.

Arguments

Arguments on behalf of the Appellant (Accused):

• The witnesses did not support the prosecution’s case.
• The accused should not be convicted solely on the testimony of PW-10, Dr. Vandana Sundriyal.
• The prosecution did not prove the recording of the incident on a mobile phone.
• The case was at most an attempt of aggravated sexual assault, not aggravated penetrative sexual assault, as there was no penetration with a penis.
• The case should fall under Section 8 of the POCSO Act (sexual assault) rather than Section 6 (aggravated penetrative sexual assault).
• The sentence of life imprisonment was too harsh considering the age of the accused (65 years at the time of the incident and 75 years at the time of the appeal).

Arguments on behalf of the Respondent (State):

• The prosecution proved the case beyond doubt.
• PW-10, Dr. Vandana Sundriyal, an independent witness, fully supported the prosecution.
• The case was of penetrative sexual assault as defined under Section 3(b) of the POCSO Act.
• The accused, being a neighbor, misused his position and tried to penetrate his finger and then tried to commit rape on the minor girl.
• The victim narrated the entire incident to Dr. Vandana Sundriyal.
• No leniency should be shown to the accused considering the object and purpose for which the POCSO Act was enacted.

Issues Framed by the Supreme Court

1. What offence the accused had committed?
2. Whether the accused deserves leniency considering his old age?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court referred to Eera vs. State (NCT of Delhi), (2017) 15 SCC 133* to emphasize that the purpose of the POCSO Act is to protect children from sexual assault and exploitation.
• The Court cited Alakh Alok Srivastava vs. Union of India & Ors., (2018) 17 SCC 291* to highlight that the POCSO Act is a gender-neutral legislation and to emphasize the mental stability of a child.
• The Court referred to M.C. Mehta v. State of T.N., (1996) 6 SCC 756* to acknowledge the importance of grooming a child in formative years.
• The Court cited State of Rajasthan vs. Om Prakash, (2002) 5 SCC 745* to emphasize that children need special care and protection.
• The Court referred to Nipun Saxena v. Union of India, (2019) 2 SCC 703* to highlight that minor victims need more protection than major victims.
• The Court considered Article 15 and 39 of the Constitution of India, noting that they empower the State to make special provisions for children and direct its policy to protect children from abuse and exploitation.
• The Court also referred to the United Nations Convention on the Rights of Children, noting that State Parties should prevent sexual exploitation of children.
• The Court considered Section 3(b) of the POCSO Act to define “penetrative sexual assault” to include insertion of any object or part of the body (not being the penis) into the vagina.
• The Court considered Section 5(m) of the POCSO Act to define “aggravated penetrative sexual assault” as penetrative sexual assault on a child below twelve years.
• The Court considered Section 6 of the POCSO Act to prescribe punishment for aggravated penetrative sexual assault.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by several factors, primarily focusing on the need to protect children from sexual abuse while also considering the specific circumstances of the case. The court emphasized the following:

• The testimony of PW-10, Dr. Vandana Sundriyal, was crucial as she was an independent witness and had no motive to lie.
• The insertion of a finger into the vagina falls under the definition of “penetrative sexual assault” as per Section 3(b) of the POCSO Act.
• Since the victim was a child below twelve years of age, the offense was categorized as “aggravated penetrative sexual assault” under Section 5(m) of the POCSO Act.
• The POCSO Act was enacted to protect children from sexual abuse, and therefore, such cases must be dealt with stringently.
• The accused, as a neighbor, had betrayed the trust placed in him and exploited the vulnerability of a four-year-old girl.
• While the court acknowledged the severity of the offense, it also considered the mitigating circumstances of the accused’s age and health condition.

Fact:Law Ratio

Logical Reasoning

Judgment

The Supreme Court upheld the conviction of the accused for the offenses under Sections 376(2)(i) of IPC and Section 5 of the POCSO Act, punishable under Section 6 of the POCSO Act. However, considering the mitigating circumstances of the accused’s age and health, the Court converted the life imprisonment sentence to fifteen (15) years of rigorous imprisonment (RI). The fine imposed by the Trial Court and confirmed by the High Court was maintained.

The court noted, “it has been established and proved by the prosecution that the accused took the victim girl away from the house; took her deep into the bushes; disrobed her and removed his clothes as well; penetrated his finger in the vagina, due to which the victim girl felt pain and irritation in urination and he was about to force himself upon her and commit the offence of rape when he was caught red handed.”

The Court further stated, “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.”

In its final decision, the Court observed, “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 bench consisted of Justices M.R. Shah and B.V. Nagarathna, with Justice M.R. Shah authoring the opinion. There were no dissenting opinions.

Key Takeaways

• Insertion of a finger into the vagina constitutes “penetrative sexual assault” under Section 3(b) of the POCSO Act.
• Sexual assault on a child below twelve years of age is considered an “aggravated penetrative sexual assault” under Section 5(m) of the POCSO Act.
• The POCSO Act is a stringent law designed to protect children from sexual abuse, and courts should generally not show leniency to offenders.
• Courts may consider mitigating circumstances such as the age and health of the accused while deciding on the quantum of punishment.
• The judgment reinforces the importance of protecting children from sexual abuse and the need for strict enforcement of the POCSO Act.

Directions

The Supreme Court directed that the accused shall undergo fifteen (15) years of rigorous imprisonment with the fine imposed by the Trial Court and confirmed by the High Court.

Development of Law

The ratio decidendi of this case is that the insertion of a finger into the vagina constitutes “penetrative sexual assault” under Section 3(b) of the POCSO Act, and when committed on a child below twelve years, it becomes “aggravated penetrative sexual assault” under Section 5(m), punishable under Section 6 of the Act. This clarifies the scope of “penetrative sexual assault” to include digital penetration, reinforcing the strict approach towards offenses against children under the POCSO Act. This judgment does not change any previous positions of law but rather clarifies the interpretation of the existing provisions of the POCSO Act.

Conclusion

In the case of Nawabuddin vs. State of Uttarakhand, the Supreme Court upheld the conviction of the accused for aggravated penetrative sexual assault under the POCSO Act, while reducing the sentence from life imprisonment to 15 years of rigorous imprisonment. The Court clarified that digital penetration falls within the definition of penetrative sexual assault under the Act. This judgment underscores the judiciary’s commitment to protecting children from sexual abuse while also considering the specific circumstances of the accused.