Trial Court Applied Wrong Statutory Provision: Patna HC Directs Release Of Old Man After 10 Yrs Imprisonment In POCSO Case; Enhances Victim Compensation

The Patna High Court has directed the release of an old man while sentencing him to the period already spent in custody and also enhanced the amount of compensation for the victim.

The Court was dealing with an Appeal preferred against the Judgment of conviction and Order of sentence by which the said man was found guilty by the Trial Court under Section 376 of the Indian Penal Code (IPC) and Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

A Division Bench comprising Justice Ashutosh Kumar and Justice Jitendra Kumar observed, “… we find that learned Trial Court has applied wrong statutory provisions to punish the convict/appellant by sentencing him under Section 6 of the POCSO Act and sentencing him to rigorous imprisonment for the remainder of natural life. Learned Trial Court has not noticed the facts that the alleged offence has been committed in the year 2014 and at that time there was no such punishment in Section 6 of the Act. Moreover, as per the provisions of Sections 4 and 6 of the POCSO Act, we find that the present case is covered under Section 4 of the POCSO Act and not under Section 6 of the POCSO Act, because the victim has been found to be above 12 years of age and hence, penetrative sexual assault committed against her does not come under aggravated penetrative sexual assault as defined under Section 5 of the POCSO Act.”

Advocate Md. Ataul Haque appeared on behalf of the Appellant while APP Abhimanyu Sharma appeared on behalf of the Respondent.

As per the prosecution case, a written report of the informant was given to the Police Station in 2014 that his 10-year-old niece was taken by the Appellant, who was his agnate to Banaras on the pretext of serving his daughter who was expecting a child. It was alleged that at Banaras, his niece was subjected to rape by the Appellant after administration of intoxicant and when she came with him at home, she told him about the occurrence. Resultantly, an FIR was lodged and the charges were framed. The Trial Court convicted him and sentenced him to undergo rigorous imprisonment for the remainder of natural life along with a fine of Rs. 50,000/-. The victim was awarded compensation of Rs. 4 lakhs towards her rehabilitation. Being aggrieved, the Appellant was before the High Court.

The High Court in the above regard, said, “… there is no substance in the defence to say that the appellant has been falsely implicated on his refusal to get his son married with the victim. Moreover, in view of the cogent evidence about the appellant taking victim to Banaras and staying at a lodge there for two days with her corroborates the testimony of the prosecutrix.”

The Court noted that the prosecution successfully proved the foundational facts of the alleged offence and the presumption under Sections 29 and 30 of the POCSO Act stands raised against the Appellant, but the Appellant has not succeeded to rebut this presumption, despite the evidence being adduced in his defence.

“… we hold that the appellant is guilty of committing penetrative sexual assault against the victim”, it added.

The Court further noted that the penetrative sexual assault committed against the victim also comes under Section 376(1) of the IPC which also provides for the same punishment as provided under Section 4 of the POCSO Act, prior to its amendment in 2019.

“We further find that in view of the total facts and circumstances of the case, particularly the old age of the appellant, imprisonment of the appellant for 10 years would meet the ends of justice whereas the appellant has been already in custody for more than 10 years since 20.05.2014. Hence, he is sentenced to the period already spent in custody”, it directed.

Accordingly, the High Court partly allowed the Appeal, directed the release of the Appellant, and enhanced the victim compensation by Rs. 1 lakh.

Cause Title- Md. Mahmood Alam v. The State of Bihar

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