No leniency to be shown to man who misused his position to abuse a child

Supreme Court- ‘No leniency to be shown to man who misused his position to abuse a child’

In the case of N Vs. State of Uttarakhand, the Supreme Court on 08.02.2022 , held that those who commit sexual assault against children do not deserve leniency and the main aim of the POCSO Act is to protect minor victims.

Facts– The victim was a child of four years. When she was alone at home, a neighbor (“Appellant”) came and took her into the bushes to rape her.  However, some people spotted the Appellant naked when he was in the process of committing the act and they handed him over to the police. The victim’s mother then filed an FIR and a medical examination was conducted along with recording the statements of the victim and the witnesses. Charges were framed against him under Section 376(2)(i)) of IPC and Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) The Trial Court held him to be guilty for the charges and sentenced him to life imprisonment and directed him to pay a fine of Rs. 50,000, out of which Rs. 30,000 was to be given to the victim. The Appellant moved to the High Court and argued that since there was no penetration, the charges should be under Sections 7 and 8 instead of Sections 5 and 6. However, the High Court upheld the same order and the Appellant then approached the Supreme Court.

Submissions– The Counsel for the Appellant argued that

  1. It was not a case of aggravated penetrative sexual assault but of attempted penetration and the punishment should come under Section 8.
  2. The Counsel pointed out that the appellant was currently 75 years old and on the date of the incident which is 17.06.2016, Section 6 provided for a sentence of 10 years up to a maximum of life imprisonment. So it was submitted that the life imprisonment was too harsh and lighter punishment be considered.
  3. The Counsel also argued that that the witnesses did not corroborate the incident with their statements and the conviction cannot be done on the sole testimony of the doctor who conducted the medical examination. Even the authenticity of the mobile recording of the incident wasn’t established.

The Prosecution on the other hand rejected the above points and argued-

  1. It was a case of penetrative assault as defined under Section 3(b) of the POCSO Act and according to Section 5(m), whoever performs aggravated penetrative sexual assault on a child below 12 years of age can be punished under Section 6.
  2. The Appellant tried to penetrate with his finger and then tried to commit rape but he was caught by some people. If the object and purpose of the POCSO Act are to be considered, no leniency should be shown to the Appellant who misused his position as a neighbor.
  3. The doctor was an independent witness and the victim had narrated the entire incident to her. So, her testimony did support the case of the prosecution.

Observations by the Court

  1. The Court agreed that the doctor was an independent witness whose testimony could be relied on.
  2. The doctor had reported that due to the finger penetration, the victim felt pain while urinating and had swelling in her private parts. So, the Court held that it would be considered as aggravated penetrative sexual assault under Section 3(b) which could be punishable under Section 6.
  3. As far as the leniency aspect was concerned, the Court analyzed many judgments including the latest one of Nipun Saxena Vs. Union of India (2019), where the importance of protecting a minor victim of sexual assault was highlighted and stated that no leniency is to be shown to the Appellant who misused his position as a neighbor to abuse a minor. Hence, he deserved no leniency or sympathy.
  4. After amendment, Section 6 provides for a minimum of 20 years of rigorous imprisonment and maximum of life sentence. However, since the Appellant was aged and suffering from health issues, rigorous imprisonment of 15 years would be sufficient.
  5. JJ, Shah and Nagarathana commented that-

“As a neighbour, 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 years girl.

 The accused – appellant was the neighbour. 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. Therefore, the accused as such does not deserve any sympathy and/or any leniency.”

Hence, while the Court held the Appellant to be guilty of all charges, his life imprisonment sentence was reduced to 15 years rigorous imprisonment.

– Vaishali Jain, Advocate & Associate – POSH at Work & Rhea Bazaz, Final Year Student, Symbiosis Law School, Pune

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