NAWABUDDIN v. STATE OF UTTARAKHAND

years RI and which may extend to imprisonment for life – Accused is aged 70-75 years of age and is suffering from Tuberculosis (TB) – Therefore, considering such mitigating circumstances, life sentence is converted to fifteen years RI – The fine imposed by the Trial Court confirmed by the High Court is maintained – Protection of Children from Sexual Offences Act, 2012. Partly allowing the appeal, the Court HELD:

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 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 the doctor – PW-10, who examined the victim girl and before whom the victim girl narrated the entire incident to her which was recorded in medical examination report. As per PW-10 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 PW-10 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, there is no reason to doubt the deposition of PW-10. There are no allegations on behalf of the accused that there was any enmity with PW-10. Therefore, it is safe to convict the accused relying upon the deposition of PW-10 before whom the victim girl narrated the entire incident which was recorded in the medical examination report. [Para 7][1092-F-H; 1093-A-C]

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 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 A B C D E F G H 1086 SUPREME COURT REPORTS [2022] 1 S.C.R. 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 redness and swelling around the vagina found by the doctor. 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. [Para 8][1093-H; 1094-A-D]

It can be seen from the Statement of objects and reasons of the POCSO Act that 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 and for matters connected therewith and incidental thereto. [Para 9.3][1096-B-D]