By an amendment in 2019, the minimum sentences for various POCSO offences have been enhanced. Presently, under Section 4 of the POCSO Act, the offence of penetrative sexual assault has been made punishable with minimum 10 years upto life imprisonment along with fine, and for offences being inflicted on a child below 16 years, the minimum punishment is lifetime imprisonment along with fine. The fine imposed is to be used for the medical and rehabilitation expenses of the victim. Further under Section 6 of the POCSO Act, aggravated penetrative sexual assault has been made punishable with lifetime imprisonment along with fine and is also punishable with a death sentence.
In the matter of sentencing, the Court has been guided by “aggravating factors” such as death of the victim, nature of the crime, relationship of trust, on one hand, and “mitigating factors” such as the age of the accused, financial condition of the accused etc, on the other.
The State of Maharashtra v. Surajprasad @ Rajkumar, MANU/MH/1763/2017 [Bombay High Court, Division Bench]
Here the court was considering two appeals, one by the accused against conviction under Section 376(2)(f)(i) IPC and Section 4 & 6 of POCSO Act and a sentence of rigorous imprisonment for 10 years and a fine of Rs. 1,000/- and in default to suffer rigorous imprisonment for 3 months. The second appeal was by the state seeking enhancement of sentence, making a case that the offence deserves maximum punishment.
In its reappreciation of the facts of the case, the High Court held that the Special Court has correctly appreciated the facts of the case while convicting the accused. To decide the quantum of sentence, the court relied on the following passages from the Supreme Court in the case of Shyam Narain v State (NCT of Delhi) 2013 (7) SCC 77:
“14. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.
26. It is seemly to note that the legislature, while prescribing a minimum sentence for a term which shall not be less than ten years, has also provided that the sentence may be extended upto life. The legislature, in its wisdom, has left it to the discretion of the Court. Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. The eight year old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualised. The torment on the child has the potentiality to corrode the poise and equanimity of any civilized society. The age old wise saying that “child is a gift of the providence” enters into the realm of absurdity. The young girl, with efflux of time, would grow with traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers.
27. Respect for reputation of women in the society shows the basic civility of a civilised society. . .. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court.”
Placing reliance on the above quoted passages the court held – “We are of the opinion that in the facts and circumstances of the present case, the accused has committed a barbaric act of raping his own stepdaughter who was only 9 years old at the time of the incident. The accused was supposed to take care of the prosecutrix and he has not only blatantly violated the trust that the prosecutrix had in him, but he has virtually destroyed the life of the prosecutrix and scarred her physically, mentally and psychologically for the rest of her life. In this situation, we find that the appropriate punishment to be imposed on the accused would be to enhance the sentence to rigorous imprisonment for life as provided under Section 376(2)(f)(i) of the I.P.C. and Sections 4 and 6 of POCSO Act. Accordingly, the appeal filed by the State stands allowed and the accused is sentenced to suffer imprisonment for life.”
Fahad Mustaq Patankar v. The State of Maharashtra, MANU/MH/0924/2018 [Bombay High Court, Single Judge]
The High Court was considering an appeal by the accused for a conviction under Section 4 of the POCSO Act and sentencing to a rigorous imprisonment for 7 years and a fine of Rs. 5,000/-
After a careful analysis of the facts of the case, the court held that the prosecution has successfully established that the accused has committed the offence of penetrative sexual assault. In deciding the quantum of sentence the court held: “Section 4 of the POCSO Act provides for punishment for penetrative sexual assault. The minimum sentence is that of 7 years and the same can extend up to imprisonment for life. In the case in hand, the learned trial court had sentenced the appellant/accused for rigorous imprisonment for 7 years. Section 4 of the POCSO Act does not provide for reducing the minimum sentence prescribed therein, even if there are special reasons. Therefore, I am unable to accept the contention of the learned advocate for the appellant/accused that taking aid of the rulings cited by him, which relates to the provisions of Section 376 of the Penal Code, 1860 for awarding lesser sentence for adequate and special reasons, sentence imposed on the appellant/accused needs to be reduced further. The learned trial court has awarded bare minimum sentence to the appellant/accused, which cannot be interfered with.”
For consideration before the High Court was an appeal against conviction under Section 6 of the POCSO Act and a sentence of rigorous imprisonment for ten years with a fine of Rs. 1000/-
On the facts of the case, the court held that the accused did an attempt towards an act committing aggravated penetrative sexual assault and therefore, the trial court has rightly appreciated all the circumstances and facts on record and passed the appropriate sentence of imprisonment. The court relied on the following passage from the case of Madan Goapl v Naval Dubey AIR 1992 SCW 1480 – “…though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms”.
Further, the court held refusing to interfere with the quantum of sentence awarded by the trial court held: “This is a case in which there is no question of reformation of the appellant as he was quite a grown up male who knew the consequences of his act.”
Swarup Biswas v. The State of West Bengal, 2018 (3) Cal LT 272 [High Court of Calcutta, Single Judge]
Before the High Court was an appeal against conviction under Section 6 of POCSO Act and sentence to imprisonment for five years.
The court opined that the Trail Court has rightly held the appellant guilty of offence under Section 6 of the POCSO Act and that the appellant does not deserve to be dealt with lenity. In this context the court held: “The question of sentence is a matter of discretion primarily resting with the trial Court. It is well settled that when that discretion has been properly exercised, an appellate Court should not interfere unless there are very strong reasons and in case where the sentence cannot be said to be so grossly inadequate as to amount to a miscarriage of justice. Therefore, the question of sentence has to determined not with reference to the volume or character of the evidence adduced by the prosecution in support of its case, but with reference to the fact whether there are any extenuating circumstance which can be said to mitigate the enormity of the crime. In the context of what has been discussed above I do not find any mitigating circumstance to reduce the sentence to the period already undergone.”
The State of Maharashtra v. Shatrughna Baban Meshram, MANU/MH/2785/2015 [Bombay High Court, Division Bench]
The High Court was considering the case of confirmation and an appeal against conviction of the appellant for the offences punishable under Section 302 IPC and sentencing to death, also conviction for the offence punishable under Section 376-A IPC and sentencing to death, convicting for the offence punishable under Section 6 of POCSO Act and sentencing to suffer Rigorous Imprisonment for life and to pay fine of Rs. 2,000/-.
In dealing with the aspect of sentence the court applied the yard stick laid down in the case of Bachan Singh v State of Panjab, Machi Singh v State of Punjab and held: “In the present matter, a child was taken from the custody of the grandfather and in spite of his resistance, a child was subjected to sexual violence and then was done to death.” This the court held falls under “aggravating circumstances”. Further, the court noted that the “mitigating circumstance” in the present case is that the accused is a young boy. In balancing these two circumstances, the court held that the accused cannot be given the benefit of mitigating circumstances given the nature of the crime.
Referring the facts of the case, the court refused to interfere with the Judgment of the trial court on the ground that: “In the present case, there is absolutely no doubt in our mind that the murder is committed in extremely brutal and dastardly manner. While considering the aspect of the personality of the victim, the record clearly reveals that the victim is an innocent child of two and half years who hardly could have either provided even an excuse or a provocation and was a helpless victim of the lust and the appellant/accused not only ravished the girl with a violent sexual attack but also acted in beastly manner.”
The High Court was dealing with an appeal against conviction under section 3 & 4 of POCSO Act and a sentence for a term of ten years of rigorous imprisonment and awarded a fine of Rs. 50,000/-. The arguments before the High Court were confined to quantum of sentence.
Relying on a series of judgments of the Supreme Court, the could held:
“Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced.
The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society cannot endure long and develop under serious threats of crime and disharmony. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. It is therefore, necessary to avoid undue leniency in imposition of sentence. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.”
In the facts of the case, considering the age of the accused and the period for which he has been continuously in jail, the court took a liberal view and reduced the term of sentence to minimum imprisonment of 7 years rigorous imprisonment.
State of Gujarat v. Pankajbhai @ Punabhai Bhikabhai Patadiya, 2016 CriLJ 1744 [High Court of Gujarat, Division Bench]
The court was considering an appeal by the State seeking enhancement of punishment and sentence imposed by the Special Court. The Special Court convicted the accused for the offence punishable under section 376 of the IPC and section 4 of the POCSO Act with a sentence of 7 years’ rigorous imprisonment with fine of Rs. 10,000/- section 376 of the IPC and 7 years’ rigorous imprisonment with fine of Rs. 5000/- offence under section 4 of the POCSO Act. The Accused and accepted the judgment of the trial court and preferred no appeal.
In considering the appeal for enhancement of sentence the court held: “Applying the law laid down by the Hon’ble Supreme Court in the aforesaid decisions to the facts of the case on hand, awarding minimum sentence of 7 years for the offence punishable under section 376 of the IPC and section 4 of the POCSO Act, 2012 cannot be said to be adequate punishment commensurate with the gravity of the offence. In the present case at the time of commission of the offence, victim was aged only 3 years and the accused was aged 25 years of age. The accused was a neighbour and the victim went to the place of the accused to play and taking the disadvantage of the situation, the accused committed the offence. Committing the offence of rape on the victim aged 3 years is a heinous crime and is required to be dealt with sternly and with iron hand. In such a case awarding the sentence minimum provided under the IPC and POCSO Act, 2012 only cannot be said to be adequate punishment commensurate with the gravity of the offence. Merely because the accused is young, can hardly be a ground not to impose adequate punishment and/or to impose the sentence minimum provided under the IPC and POCSO Act, 2012 only. In the present case even for whatever reason as such the accused was able to see that the parents of the victim who were from the lower strata of the society and migrated from Uttar Pradesh for earning, turned hostile and the accused can be said to be successful to that extent in getting the parents of the victim turn hostile. Therefore also, the learned Special Court ought to have impose the maximum punishment and ought not to have satisfied with imposing the sentence minimum provided under the IPC and POCSO Act, 2012 only. A strong message must go to such an accused and to the society that any such attempt would be dealt with sternly and with iron hand.”
Before the High Court was an appeal against conviction under Section 363/376(2)(i)/506 IPC and Section 5(m)/6 of POCSO Act with a sentence of maximum punishment of rigorous imprisonment for life, which shall mean imprisonment for the remainder of his life, for the offence punishable under Section 376(2)(i) IPC with fine of Rs. 25,000/-.
In assessing the quantum of sentence, the court referred to the following parameters laid down in the case of Khem Chand v State of Delhi ILR (2008) Supp. (5) Del 92 in relation to the offence of rape upon a child – “1. Criminal and the crime are both important for the purposes of sentence; 2. Manner of commission of the crime being with meticulous planning or one on the spur of the moment; 3. Violence, If any, accompanying the crime whether injuries suffered were serious and required extensive treatment or have caused any permanent damage to the child bearing capacity or otherwise; 4. Whether the offender or accused was in a position of fiduciary trust or exploited a social or family relationship; 5. State of the victim, impact of the crime on the victim; 6. The antecedents of the accused, his age, whether a first time offender or repeat offender, possibility of recidivism. 7. Social backwardness or offender being a poor, illiterate labourer not found to be adequate reason by Courts. 8. Passage of time since offence committed by itself considered inadequate reasons for reprieve. 9. Rape victim’s marriage or rehabilitation may be considered as a mitigating factor.”
In the facts of the case, applying the parameters quoted above the court reduced the imprisonment to 16 years rigorous imprisonment without remissions.