Girl child deserve full protection and need greater care and protection – Apex Court

Supreme Court observed in recent judgement that 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.

Supreme Court further observed that POCSO Act has been enacted keeping in mind Article 15 and 39 of the Constitution of India. Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. To achieve the goal as per Article 15 and 39 of the Constitution, the legislature has enacted the Protection of Children from Sexual Offences Act, 2012.

Facts of Case - On 17.06.2016 at about 5:00 pm, informant/mother gone to fetch water and her husband out for work. victim girl aged four years was alone in the house. The accused – appellant enticed and took the victim girl. However, 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. FIR lodged on the statement of 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. The victim girl was medically examined. Investigating officer filed the chargesheet against the accused for the offences punishable under Section 376(2) (F) of IPC and Section 3/4 of the POCSO Act. The charges were framed but accused denied the charges and claimed to be tried.

Thirteen witnesses examined by prosecution. On appreciation of evidence and more particularly relying upon the deposition of PW­10 ­ Dr. Vandana Sundriyal before whom the victim girl narrated the entire incident, 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. The Trial Court sentenced the accused to undergo life imprisonment and also directed to pay monetary fine of Rs.50,000/­. The Trial Court also passed an order that out of the amount of fine of Rs.50,000/­, Rs.30,000/­ shall be paid to the victim girl as compensation.    

Accused preferred appeal to Nainital High Court but same was dismissed. Aggrieved accused approached the Apex Court.           

Accused contended on the ground that High Court had committed a grave error in dismissing the appeal and confirming the judgment and order of conviction under Section 5/6 of the POCSO Act.  Also contended that witnesses did not support the case of the prosecution and accused could not be convicted on the sole testimony of PW­10 ­ Dr. Vandana Sundriyal. Even in the present case recording of the incident in the mobile has not been proved.

Further contended that it was only an attempt of aggravated sexual assault and in absence of penetration and aggravated penetrative sexual assault, the appellant could not be convicted under Section 5/6 of the POCSO Act.

In the alternative, requested to took lenient view as accused is 75 years of age and imposing life sentence was too harsh and disproportionate to the offence committed and requested to impose a lesser punishment.

State opposed the appeal on the ground that the prosecution had proved the case beyond doubt and this case of penetrative sexual assault as defined under Section 3(b) of the POCSO Act. And further contended that he misused his position as a neighbor and tried to penetrate his finger and then tried to commit rape on the minor girl. However, before he could succeed in committing rape, he was caught red handed by the local persons.    

Apex Court observed that It has been established and proved by the prosecution that the victim girl was lured by the appellant – accused; she was taken to the bushes; accused removed his own clothes as well as the clothes of the victim girl and fondled her private parts and penetrated his finger into the vagina of the victim girl. The same is fully supported by Dr. Vandana Sundriyal – PW10, who examined the victim girl. Therefore, we are of the opinion that it is safe to convict the accused relying upon the deposition of PW­10 Dr. Vandana Sundriyal

While consider that what offence the accused had committed, Apex Court observed that, 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 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. 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.

Supreme Court further observed that as a neighbor, 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-year girl. The accused – appellant was the neighbor. 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.

However Supreme Court after consider the age of accused that is 70­75 years of age and  suffering from Tuberculosis (TB) , the life sentence converted to fifteen years RI .

D.D: - 08 February,2022

Nawabuddin Versus State of Uttarakhand