A revision petition was filed, challenging the order of sentence dated 02.12.2021, passed by the Principal Magistrate, Juvenile Justice Board, Sonipat. The Petitioners have been convicted for commission of offence punishable under Section-377 of the Indian Penal Code (IPC), 1860. And Section-10 of the Protection of Children from Sexual Offences Act (POCSO), 2012.
The brief facts of the as they may emerge are that the petitioners A, M and D (Children in conflict with law & hereinafter referred to as CCL) were apprehend on the basis of a complaint submitted by VK stating that on 15 October’18, his son L, aged 8 years had gone to the primary school where A, M and D committed Sodomy and Unnatural act of carnal intercourse with his son L. FIR was registered, investigation was conducted and accused A, M and D were apprehended. After considering all the evidence and careful examination along with evidence by both the parties, the Juvenile Justice board came to a conclusion that petitioners A, M and D were guilty for commission of offences under Section-377 of IPC (Sodomy and Unnatural Act of carnal intercourse) and Section-10 of POCSO Act.
The said judgement was challenged by petitioners before the Court of learned Sessions Judge, Fast Track Court, Sonipat but appeal was dismissed. Hence, the present revision was filed.
The Petitioners argued that:
The finding of conviction recorded against the petitioners was perverse and was not substantiated by the evidence available on record. It was contended that the prosecution has not been able to establish occurrence of the event in the nature of carnal intercourse against the order of nature.
The reference made to the statement of the victim L, the statement was factually incorrect in as much as the said witness had never deposed about being sodomised and forcible carnal intercourse and has only stated that the petitioners had done “Wrong Act/Bad Act” with him.
Since the medical examination was done on the same day, when the crime was committed, there was no marks of injury or detection of spermatozoa on the body or the clothes of victim which shows that there was no possibility of the victim being subjected to forcible carnal intercourse and sodomy under Sec-377 IPC.
The conviction of petitioner under Sec-10 of POCSO Act was also not sustainable as the necessary ingredients of aggravated sexual assault were not made out.
The petitioners were themselves juvenile at the time of commission of the offence and in that case, while sentencing the petitioners, lenient view ought to be taken. The petitioners have an entire career ahead of them and their prospect will be affected due to conviction under such offences.
Observation of Court:
- The penetration is not sine qua non for attracting the penalty of sexual assault. Any act that involves touching of private parts/genitalia or primary/secondary sexual characteristics of a child with a sexual intent involving physical contact without penetration would amount to a sexual assault. Hence, it falls under the category of aggravated sexual assault which punishable under Sec-10 of POCSO Act, 2012.
- The testimony given by the victim established that he was overpowered by the petitioners and was subjected to wrong act/bad act. Reliability and admissibility of the statement of the victim cannot be discredited merely for want of corroboration through medical evidence especially when the charge is of a non-penetrative sexual assault. There is thus no infirmity in conviction under Sec-10 of POCSO Act.
- The argument raised by the petitioners that absence of medical record showing any penetration would not be attract the offence under Sec-377 of IPC, is fallacious and is liable to be rejected as the same is not the true import of the Section. Hence, the argument of the petitioner that conviction is bad for want of any external mark of injury around the body of the victim was not being well founded. Court also said that Sec-377 can be attracted even in a situation where the penetration happens to be on any other part of the body of a victim, the predominant intent in the commission of the offence, however, has to be sexual.
- Referring to the matter of “Vijay @ Chinni vs. State of Madhya Pradesh, Supreme Court held that absence of injury or mark of violence on the person of victim is inconsequential.
- In case of “Gurcharan Singh vs State of Haryana, the court held that “the absence of injury or mark of violence on the private part on the person of the prosecutrix is of no consequence when the prosecutrix is minor.”
- It was thus held that the order of conviction passed by the Courts for offences under Sec-377 IPC and Sec-10 of POCSO Act, were valid, legal and in accordance with law. It does not suffer any illegality, infirmity or perversity.
- Court referring to the parting plea of the petitioners for taking a lenient view against the petitioners, in the matter of Nawabuddin vs. State of Uttarakhand, Supreme Court held by referring the General Comment No. 13 of Th Convention specifically dealt with the right of the child to freedom from all forms of violence and observed that “no violence against children is justifiable; all violence against children is preventable”.
- Court said that any act of sexual assault or sexual harassment on the children should be viewed very seriously and 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 or pornographic purposes they shall be punished suitably and no leniency shall be shown to them.
- The High court held that a perusal of the object of the statute reinforces the need for the Courts to adopt a stance in the matters relating to offences against children. A misplaced sympathy led to defeat the statutory object and purpose. Considering the fact that the victim happened to be a child of 8 years on the date of occurrence, his dignity was violated by sheer brute force, court did not accept the plea for leniency and rejected the same.
Finding no merits in the submissions advanced by the petitioners, court dismissed the revision petition.
Vaishali Jain, Advocate & Associate – POSH at Work & Riddhima Khanna