Nawabbudin vs State Of Uttarakhand on 8 February, 2022


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Supreme Court of India

Nawabbudin vs State Of Uttarakhand on 8 February, 2022

Author: M.R. Shah

Bench: M.R. Shah, B.V. Nagarathna

                                                                  REPORTABLE

                                IN THE SUPREME COURT OF INDIA
                               CRIMINAL APPELLATE JURISDICTION



                               CRIMINAL APPEAL NO.144 OF 2022


         Nawabuddin                                                ..Appellant(S)


                                              Versus

         State of Uttarakhand                                    ..Respondent(S)



                                         JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 22.08.2019 passed by the High

Court of Uttarakhand at Nainital in Criminal Appeal No.

280 of 2018 by which the High Court has dismissed the

said appeal preferred by the accused – appellant herein

and has confirmed the conviction of the accused for the

offences punishable under Sections 376(2)(i) of IPC and
Signature Not Verified

Digitally signed by R
Natarajan
Date: 2022.02.08
16:29:04 IST
Section 5/6 of the Protection of Children From Sexual
Reason:

Offences Act, 2012 (hereinafter referred to as “POCSO

1
Act”), the original accused has preferred the present

appeal.

2. That as per the case of the prosecution on 17.06.2016 at

about 5:00 pm, the first informant (PW­1) had gone to

fetch water and her husband was out for work. At that

time, her daughter (victim girl) aged four years was all

alone in the house. The accused – appellant herein who

was a neighbour of PW­1, enticed and took the victim girl

in the bushes to rape her. However, at that time the

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. That a first information report was

lodged by PW­1 – 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 by PW­10 – Dr. Vandana Sundriyal on

17.06.2016. During the course of investigation the

statement of the victim girl as well as the witnesses were

recorded. After conclusion of the investigation the

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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 against the accused for the offences

punishable under Section 376(2)(i) of IPC and Section 5/6

of the POCSO Act. The accused denied the charges and

claimed to be tried. Therefore, he was tried by the learned

Special Judge (POCSO Act) for the aforesaid offences.

2.1 To prove the charges against the accused and to prove the

case, the prosecution examined as many as thirteen

witnesses including PW­1 – mother of the victim girl and

PW­10 – Dr. Vandana Sundriyal who examined the victim

girl on 17.06.2016. After closure of the prosecution

evidence, statement of the accused under Section 313 of

Cr.PC was recorded. His case was of total denial. 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

3
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.

3. Feeling aggrieved and dissatisfied with the impugned

judgment and order of conviction and sentence passed by

the learned Trial Court/Special Judge (POCSO Act), the

accused preferred an appeal before the High Court. Before

the High Court, amongst other grounds, one of the

grounds was that the case would not fall under Section

5/6 of the POCSO Act and at the most the case may fall

under Section 7/8 of the POCSO Act as there was no

penetration and at the most and even as per the case of

the prosecution the accused had tried to commit the rape.

By the detailed impugned judgment and order, the High

Court has dismissed the said appeal and has confirmed

the conviction of the accused and the sentence of life

imprisonment. Feeling aggrieved and dissatisfied with the

impugned judgment and order passed by the High Court,

the accused has preferred the present appeal.

4

4. Shri Saju Jacob, learned counsel appearing on behalf of

the accused – appellant has vehemently submitted that in

the facts and circumstances of the case the High Court

has committed a grave error in dismissing the appeal and

confirming the judgment and order of conviction passed by

the learned Trial Court convicting the accused for the

offences punishable under Section 5/6 of the POCSO Act.

4.1 It is submitted that in fact the witnesses have not

supported the case of the prosecution. It is submitted that

the accused could not have been convicted on the sole

testimony of PW­10 ­ Dr. Vandana Sundriyal.

4.2 It is further submitted by learned counsel appearing on

behalf of the accused that even in the present case so

called recording of the incident in the mobile has not been

established and proved by the prosecution by leading any

cogent evidence.

4.3 It is further submitted by learned counsel appearing on

behalf of the accused that even as per the prosecution

case, it was only an attempt of aggravated sexual assault.

It is submitted that in absence of penetration and

5
aggravated penetrative sexual assault, the appellant could

not have been convicted for the offences punishable under

Section 5/6 of the POCSO Act.

4.4 It is vehemently contended by learned counsel appearing

on behalf of the accused that even considering the

prosecution case as it is, at the most the case would fall

under sexual assault punishable under Section 8 of the

POCSO Act. It is urged that in any case the case would not

fall under aggravated penetrative sexual assault.

4.5 In the alternative, it is submitted by learned counsel

appearing on behalf of the accused that at the time of the

alleged incident accused was aged approximately 65 years

of age and as on today he is 75 years of age. It is

submitted that as per Section 6 of the POCSO Act as it

stood on the date of incident the minimum sentence

provided was ten years but which may extend to

imprisonment for life. It is therefore submitted that

imposing life sentence is too harsh and disproportionate to

the offence committed. Therefore, it is prayed to impose a

lesser punishment than the life imprisonment.

6

5. Shri Krishnam Mishara, learned counsel appearing on

behalf of the State of Uttarakhand, while opposing the

present appeal has vehemently submitted that in the

present case as such the prosecution has proved the case

beyond doubt. It is submitted that PW­10 ­ Dr. Vandana

Sundriyal who is an independent witness has fully

supported the case of the prosecution.

5.1 It is further contended by learned counsel appearing on

behalf of the State that this is a case of penetrative sexual

assault as defined under Section 3(b) of the POCSO Act. It

is submitted that as per Section 5(m) whoever commits

penetrative sexual assault on a child below twelve years, it

can be said to be an aggravated penetrative sexual assault

punishable under Section 6 of the POCSO Act.

5.2 It is urged by learned counsel appearing on behalf of the

State that the accused in the present case was a neighbour

of the victim girl; he misused his position as a neighbour

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. It is submitted that the entire incident was

7
narrated by the victim girl to Dr. Vandana Sundriyal – PW­

10. It is therefore submitted that when the accused

misused his position as a neighbour and committed the

offence under the POCSO Act upon a girl aged four years

and looking to the object and purpose for which the

POCSO Act has been enacted, no leniency should be

shown to the accused. It is submitted that in the facts and

circumstances of the case the accused does not deserve

any sympathy or any leniency.

5.3 Making the above submissions it is prayed to dismiss the

present appeal.

6. We have heard the learned counsel appearing on behalf of

the respective parties at length.

7. At the outset it is required to be noted that there are

concurrent findings recorded by both the Courts below,

recorded on appreciation of evidence on record to the effect

that the accused tried to commit the offence of rape on the

victim girl aged four years. 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

8
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 – PW­

10, who examined the victim girl on 17.06.2016 and before

whom the victim girl narrated the entire incident to her

which was recorded in exhibit A­6 – medical examination

report. As per Dr. Vandana Sundriyal – PW­10 who is an

independent witness, the victim girl told her that the

accused tried to penetrate his finger and therefore she felt

pain and irritation in urination as well as she also felt pain

in her body. As per PW­10 there was redness and swelling

around the vagina. Though the other witnesses who seem

to have been won over might not have supported the case

of the prosecution, we see no reason to doubt the

deposition of PW­10 ­ Dr. Vandana Sundriyal, who is an

independent witness. There are no allegations on behalf of

the accused that there was any enmity with Dr. Vandana

Sundriyal. Therefore, we are of the opinion that it is safe to

convict the accused relying upon the deposition of PW­10 ­

Dr. Vandana Sundriyal before whom the victim girl

narrated the entire incident which was recorded in the

9
medical examination report namely exhibit A­6. Thus, 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.

7.1 Now the next question which is posed for the consideration

of this Court is, what offence the accused had committed.

The Trial Court convicted the accused for the offences

punishable under Sections 376(2)(i) of IPC and Section 5/6

of the POCSO Act. It is the case on behalf of the accused

that at the most it can be said to be an attempt to commit

penetrative sexual assault and therefore at the most it can

be said to be the case of sexual assault under Section 7 of

the POCSO Act punishable under Section 8 of the POCSO

Act. Therefore, it is the case on behalf of the accused that

as it is neither a case of penetrative sexual assault nor

aggravated penetrative sexual assault, therefore the

punishment of life imprisonment imposed was not

10
warranted and at the highest he could have been punished

with imprisonment of either description for a term which

shall not be less than three years but which may extend to

five years, and shall also be liable to fine.

8. While appreciating the aforesaid submissions the relevant

provisions of the POCSO Act are required to be referred to

and considered. Section 3 of the POCSO Act defines

‘penetrative sexual assault’. As per Section 3 of the Act, a

person is said to commit ‘penetrative sexual assault’ if­(b)

he inserts, to any extent, any object of a part of the body,

not being the penis, into the vagina………. Section 4

provides ‘punishment for penetrative sexual assault’.

Section 5 of the Act defines ‘aggravated penetrative sexual

assault’ and as per Section 5(m) whoever commits

penetrative sexual assault on a child below twelve years it

is aggravated penetrative sexual assault. Section 6

provides ‘punishment for aggravated penetrative sexual

assault.’ In the present case, 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

11
redness and swelling around the vagina found by the

doctor. 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. Therefore, both, the 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.

9. Now in so far as the prayer on behalf of the accused –

appellant herein to take a lenient view in the matter by

considering mitigating circumstances of old age of the

accused and to alter the life imprisonment to any other

punishment is concerned, the same has to be considered

in light of the object and purpose of enactment of the

POCSO Act.

9.1 In the case of Eera Vs. State (NCT of Delhi), (2017) 15

SCC 133, this Court has observed on the Statement and

12
Objects and Reasons of POCSO Act in para 20 as under: ­
“20. The purpose of referring to the Statement of
Objects and Reasons and the Preamble of
the Pocso Act is to appreciate that the very purpose of
bringing a legislation of the present nature is to
protect the children from the sexual assault,
harassment and exploitation, and to secure the best
interest of the child. On an avid and diligent
discernment of the Preamble, it is manifest that it
recognises the necessity of the right to privacy and
confidentiality of a child to be protected and respected
by every person by all means and through all stages of
a judicial process involving the child. Best interest and
well­being are regarded as being of paramount
importance at every stage to ensure the healthy
physical, emotional, intellectual and social
development of the child. There is also a stipulation
that sexual exploitation and sexual abuse are heinous
offences and need to be effectively addressed. The
Statement of Objects and Reasons provides regard
being had to the constitutional mandate, to direct its
policy towards securing that the tender age of children
is not abused and their childhood is protected against
exploitation and they are given facilities to develop in a
healthy manner and in conditions of freedom and
dignity. There is also a mention which is quite
significant that interest of the child, both as a victim
as well as a witness, needs to be protected. The stress
is on providing child­friendly procedure. Dignity of the
child has been laid immense emphasis in the scheme
of legislation. Protection and interest occupy the
seminal place in the text of the Pocso Act.”

9.2 In the case of Alakh Alok Srivastava Vs. Union of India

& Ors. (2018) 17 SCC 291, in para 14 and 20, it is

observed as under: ­
“14. At the very outset, it has to be stated with
authority that the Pocso Act is a gender neutral
legislation. This Act has been divided into various
chapters and parts therein. Chapter II of the Act titled
“Sexual Offences Against Children” is segregated into
five parts. Part A of the said Chapter contains two
sections, namely, Section 3 and Section 4. Section 3
defines the offence of “Penetrative Sexual Assault”

13
whereas Section 4 lays down the punishment for the
said offence. Likewise, Part B of the said Chapter
titled “Aggravated Penetrative Sexual Assault and
Punishment therefor” contains two sections, namely,
Section 5 and Section 6. The various sub­sections of
Section 5 copiously deal with various situations,
circumstances and categories of persons where the
offence of penetrative sexual assault would take the
character of the offence of aggravated penetrative
sexual assault. Section 5(k), in particular, while laying
emphasis on the mental stability of a child stipulates
that where an offender commits penetrative sexual
assault on a child, by taking advantage of the child’s
mental or physical disability, it shall amount to an
offence of aggravated penetrative sexual assault.”

“20. Speaking about the child, a three­Judge Bench
in M.C. Mehta v. State of T.N. (1996) 6 SCC 756

“1. … “child is the father of man”. To enable
fathering of a valiant and vibrant man, the child must
be groomed well in the formative years of his life. He
must receive education, acquire knowledge of man
and materials and blossom in such an atmosphere
that on reaching age, he is found to be a man with a
mission, a man who matters so far as the society is
concerned.”

9.3 As it can be seen from the Statement of objects and

reasons of the POCSO Act since the sexual offences

against children were not adequately addressed by the

existing laws and a large number of such offences were

neither specifically provided for nor were they adequately

penalised, the POCSO Act has been enacted to protect the

children from the offences of sexual assault, sexual

harassment and pornography and to provide for

establishment of special courts for trial of such offences

14
and for matters connected therewith and incidental

thereto.

9.4 At this stage, it is required to be noted that the 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.

9.5 As noted in the Statement of objects and reasons, as per

the United Nations Convention on the Rights of Children,

to which India is a signatory to the treaty, the State Parties

to undertake all appropriate national, bilateral and

multilateral measures to prevent (a) the inducement or

coercion of a child to engage in any unlawful sexual

15
activity; (b) the exploitative use of children in prostitution

or other unlawful sexual practices; and (c) the exploitative

use of children in pornographic performances and

materials.

Article 19 of the Convention states the following: ­

1. States Parties shall take all appropriate
legislative, administrative, social and
educational measures to protect the child from
all form/s of physical or mental violence, injury
or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual
abuse, while in the care of parent(s), legal
guardian(s) or any other person who has the
care of the child.

2. Such protective measures should, as
appropriate, include effective procedures for the
establishment of social programmes to provide
necessary support for the child and for those
who have the care of the child, as well as for
other forms of prevention and for identification,
reporting, referral, investigation, treatment and
follow­up of instances of child maltreatment
described heretofore, and, as appropriate, for
judicial involvement.

The general comment No.13 on the Convention

specifically dealt with the right of the child to freedom from

all forms of violence and it has observed that “no violence

against children is justifiable; all violence against children

is preventable”

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10. Keeping in mind the aforesaid objects and to achieve what

has been provided under Article 15 and 39 of the

Constitution to protect children from the offences of sexual

assault, sexual harassment, the POCSO Act, 2012 has

been enacted. Any act of sexual assault or sexual

harassment to the children should be viewed very

seriously and all such offences of sexual assault, sexual

harassment on the children 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 for

pornographic purposes they shall be punished suitably

and no leniency shall be shown to them. Cases of sexual

assault or sexual harassment on the children are

instances of perverse lust for sex where even innocent

children are not spared in pursuit of such debased sexual

pleasure.

17
Children are precious human resources of our country;

they are the country’s future. The hope of tomorrow rests

on them. But unfortunately, in our country, a girl child is

in a very vulnerable position. There are different modes of

her exploitation, including sexual assault and/or sexual

abuse. 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. As

observed and held by this Court in the case of State of

Rajasthan Vs. Om Prakash, (2002) 5 SCC 745, children

need special care and protection and, in such cases,

responsibility on the shoulders of the Courts is more

onerous so as to provide proper legal protection to these

children. In the case of Nipun Saxena v. Union of India,

(2019) 2 SCC 703, it is observed by this Court that a minor

who is subjected to sexual abuse needs to be protected

even more than a major victim because a major victim

being an adult may still be able to withstand the social

18
ostracization and mental harassment meted out by society,

but a minor victim will find it difficult to do so. Most

crimes against minor victims are not even reported as very

often, the perpetrator of the crime is a member of the

family of the victim or a close friend. Therefore, the child

needs extra protection. Therefore, no leniency can be

shown to an accused who has committed the offences

under the POCSO Act, 2012 and particularly when the

same is proved by adequate evidence before a court of law.

10.1 In the present case it is to be noted that the accused was

aged approximately 65 years of age at the time of

commission of offence. He was a neighbour of the victim

girl. He took advantage of the absence of her parents,

when her mother went to fetch water and her father had

gone to work. He is found to have committed aggravated

penetrative sexual assault (as observed hereinabove) on a

girl child aged four years, which demonstrates the mental

state or mindset of the accused. 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

19
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.

However, the punishment provided for the offence

under Section 6, as it stood prior to its amendment and at

the time of commission of the offence in the instant case

for aggravated penetrative sexual assault was rigours

imprisonment for a term which shall not be less than ten

years but which may extend to imprisonment for life and

shall also be liable to fine. Now as per the amended

Section 6 with effect from 16.08.2019, the minimum

punishment provided is twenty years and which may

extend to imprisonment for life, which shall mean

imprisonment for the remainder of natural life of that

person, and shall also be liable to fine, or with death.

Therefore, at the relevant time the minimum punishment

provided for the offence under Section 6 of the POCSO Act,

20
2012 was ten years RI and which may extend to

imprisonment for life. It is reported that today the accused

is aged 70­75 years of age and it is also reported that he is

suffering from Tuberculosis (TB). 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.

11. In view of the above discussion the impugned judgment

and order passed by the High Court and the learned

Special Court convicting the accused for the offences

punishable under Sections 376(2)(i) of IPC and Section 5 of

the POCSO Act and imposing the punishment under

Section 6 of the POCSO Act is hereby upheld. The accused

is rightly held guilty for the aforesaid offences. However,

for the reasons assigned hereinabove the sentence of life

imprisonment is converted to that of fifteen (15) years RI

with fine/compensation imposed by the Trial Court

confirmed by the High Court. Now the accused shall

21
undergo fifteen (15) years RI with fine imposed by the Trial

Court confirmed by the High Court for the aforesaid

offences instead of life imprisonment. The present appeal

is partly allowed to the aforesaid extent only.

…………………………………J.

(M. R. SHAH)

…………………………………J.

(B.V. NAGARATHNA)
New Delhi,
February, 08th 2022

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