The Supreme Court partly allowed an appeal to set aside conviction under Section 376AB IPC and Section 6 POCSO Act, instead convicting the appellant under Section 354 IPC and Section 10 POCSO Act.
The appellant challenged his conviction and sentence imposed by the Sessions Court (upheld by the Chhattisgarh High Court) for offences under Section 376AB IPC (rape of a girl under 12 years) and Section 6 of the POCSO Act (aggravated penetrative sexual assault). He sought acquittal or alternative conviction on the grounds that there was no evidence of penetration, and thus the charge of rape was not substantiated on facts or law.
The trial court convicted the appellant under both Section 376AB IPC and Section 6 POCSO Act for raping a minor, sentencing him to 20 years’ rigorous imprisonment. The High Court upheld the conviction and sentence. The appellant moved the Supreme Court on special leave.
The allegations against the appellant were that he touched the private parts of the minor victim and placed his hand on his own sexual organs. According to the FIR, the victim’s Section 164 CrPC statement, and her trial deposition, there was no allegation of penetration.
The appellant argued that, in the absence of penetration, an offence under Section 376AB IPC and Section 6 POCSO was not made out; at most, the act constituted sexual assault under Section 354 IPC and aggravated sexual assault under Section 10/Section 9m POCSO. The State maintained that the acts were grave and warranted upholding the higher conviction.
The Bench comprising Justice Ahsanuddin Amanullah and Justice Joymalya Bagchi analysed the definitions of “rape” under Section 375 IPC and “penetrative sexual assault” under Section 3(c) POCSO, holding there was no medical or testimonial evidence of penetration as required by law. The consistent version from the FIR, victim’s statement, and deposition described only non-penetrative acts. Thus, the Court ruled that the ingredients of rape/penetrative sexual assault were not proved. It accordingly invoked Section 354 IPC (outraging modesty) and Section 10 POCSO (aggravated sexual assault of a child under 12).
In result, the Supreme Court set aside the appellant’s convictions under Section 376AB IPC and Section 6 POCSO Act, substituting them with conviction under Section 354 IPC (punishable with minimum 1 year and up to 5 years) and Section 10 POCSO Act (punishable with minimum 5 years), and modified the sentence to 5 and 7 years rigorous imprisonment respectively, to run concurrently. The imposed fine of ₹50,000 was retained and directed the same to be paid to the victim as compensation.
Appearances:
For Petitioner(s): Mr. Ranji Thomas, Sr. Adv.; Mr. Mohan Raj A, Adv.; Ms. Charulata Chaudhary, AOR; Ms. Kshirja Agarwal, Adv.
For Respondent(s): Mrs. Prerna Dhall, Adv.; Ms. Rajnandani Kumari, Adv.; Mr. Kapil Katare, Adv.; Mr. Ambuj Swaroop, Adv.; Ms. Minakshi Pandey, Adv.; Mr. Prashant Singh, AOR
