On 25.2.2016 the victim’s sister who was 13 years old was present with her sister who was 2 years old (victim) at their home. They were alone at their home because their parents worked in a nearby factory. At 11:30 am the Appellant who stayed in the same building at 4th floor made an to take the child for buying some articles sister denied, but somehow the Appellant managed to take the child and said that he will bring her back, after a considerable period when he did not return, sister began to search the child and with a lady, she got to know that her wrong act has been committed with her small sister. The Appellant took the girl child to vacant land and sexually assaulted the girl child. Some of the neighbours’ witnessed this and called the police who caught the Appellant till that time the girl child was taken to SRHC hospital. After the medical test, it was confirmed that the Appellant has only assaulted the girl child.
The Appellant was convicted for committing an offence punishable under section 6 of POCSO and was sentenced for rigorous punishment of 20 years and 5,000 rupees fine and was also punished for committing an offence under IPC section 363 and was sentenced to 5 years of rigorous imprisonment both the punishment would run concurrently.
Arguments made by the Appellant
M.s Dubey who appeared on the behalf of Appellant firstly contented about the reliability of the witness no.2 the sister of the victim. She said that when she went to the bathroom then the Appellant took her sister, but this was not mentioned in the FIR. So the Appellant questioned the reliability of this witness.
Next, the aspect which Ms Dubey challenged was the sentence of the case, she argued to reduce the sentence. She argued that 20 years of rigorous punishment for committing an offence under section 6 of the POCSO act was too strident and harsh. She referred to Chotka Banvasi v State of U.P where the victim was 5 years old niece of the Accused and she was been assaulted here the convict was first given 12 years of rigorous punishment then it was been reduced to 10 years. She also mentioned Ahmed Shaikh v State of Maharashtra was the Accused sodomised with a 5-year-old boy and Accused were convicted for 10 years of rigorous punishment.
Arguments of the Respondent
Mr Gupta who appeared for the State contended that the legislation had been an amendment in 2019 where the punishment for the said crime was 20 years though it was not applicable, the legislative intent needed to be kept in the mind. He said that all offences have not the same punishment and in the said offence it was the discretion of the Court to given the sentence.
The Court stated that “proportion of crime and punishment of and offence is the goal in respected in the principal and it is an influence in the determination of the sentence.”
The Court said that the offence committed by the Appellant was not an offence with low proportionality and in this case, there can be no leniency shown as the child victim was 2 years old and helpless, from which Appellant took full advantage to assault her.
M.s Dubey referred to Chhotka Banavati v. State of Uttar Pradesh where the Accused was sentenced for 10 years. In that case, the Court said that the mental condition and financial condition of the Accused was taken into consideration so the sentenced was reduced from 12 years to 10 years.
The Court held that the sentence can be imposed for the mentioned offence as it cannot be misappropriated and the appeal was dismissed accordingly.
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