The Supreme Court has reduced the jail sentence of a man convicted of the rape of a minor from 20 years to seven after noting that the evidence on record, including the FIR, victim's deposition, and medical report, did not establish penetrative sexual assault under Section 3 of the POCSO Act.
The apex court said that at most Section 354 (Assault with intent to outrage modesty) of the Indian Penal Code (IPC) and Section 9(m) POCSO (Aggravated sexual assault on a child below 12 years) could be established.
"Neither medical reports nor the statement of the victim and her mother supported the charge of penetrative assault. Instead, the allegations amounted to sexual assault without penetration. Consequently, the conviction under Section 376AB (Rape) of the IPC and Section 6 POCSO was set aside and replaced with a conviction under Section 354 of the IPC and Section 10 POCSO. The sentence was reduced to five years under IPC and seven years under POCSO, to run concurrently, while retaining the fine of ₹50,000 as compensation to the victim," said a two-judge bench of the top court, headed by Justice Ahsanuddin Amanullah and including Justice Joymalya Bagchi, in its recent order.
Earlier, the trial court in Chhattisgarh sentenced the convict, Laxman Jangde, to 20 years in jail, which was also upheld by the state High Court.
Senior lawyer Ranji Thomas, appearing for the appellant/convict, argued before the apex court that from the FIR, subsequent statement of the victim recorded under Section 164 of the Code of Criminal Procedure, and the deposition of the victim-girl before the court during trial, it was clear that the offence under Section 376 AB, as well as under Section 6 of the POCSO Act, is not proved.
"The allegation is that the appellant had touched the private parts of the victim and put his hand in his sexual organs. The said allegation, which has been reiterated, both before the court in a statement recorded, and as also during trial, would clearly not bring the behaviour under the purview of Section 376 AB of the IPC and also, under Section 6 of the POCSO Act since there has not been actual rape committed on the victim as there was no penetration. For the same reason, submission is that Section 6 of the POCSO Act would also not be attracted because there was no penetrative sexual assault," Thomas argued.
He further contended that at worst, it can be a case under Section 354 of the IPC and under Section 9(m) of the POCSO Act. "The court may consider this vital aspect, especially in the background that the appellant has already spent five and a half years in prison," he pleaded to the apex court.
The SC eventually found credence in the submissions of the defence lawyer and reduced his client's jail sentence.
"The presumption by the trial court, as upheld by the Chhattisgarh High Court that there was penetrative sexual assault, cannot be sustained for simple reason that the same is neither supported by the medical report nor by the statement of the victim herself on three different occasions as also, that of the mother of the victim," observed the top court.
It went on to add that the direct allegation was of touching the private parts of the victim and also at the same time touching his private organs. In such view of the matter, we find that the conviction recorded under Section 376 AB of the IPC and under Section 6 of the POCSO Act cannot be sustained.
The court stated that for these reasons, it modified the conviction of the appellant to that under Section 354 of the IPC and Section 10 of the POCSO Act.
"Accordingly, the sentence of the appellant also stands modified to that of R.I. of five years under Section 354 of the IPC and seven years under Section 10 of the POCSO Act. However, the said sentences shall run concurrently. As far as the fine amount is concerned, the same is retained as Rs 50,000 and should be paid to the victim as compensation within two months from September 10," said the top court.