NAWABUDDINversusSTATE OF UTTARAKHAND

                         [2022] 1 S.C.R. 1083                              1083


                           NAWABUDDIN                                      A
                                   v.
                   STATE OF UTTARAKHAND
                  (Criminal Appeal No. 144 of 2022)
                        FEBRUARY 08, 2022                                  B
         [M. R. SHAH AND B.V. NAGARATHNA, JJ.]
       Protection of Children from Sexual Offences Act, 2012: ss.5/
6 – Penal Code, 1860 – s.376(2)(i) – Prosecution case was that the
appellant-accused was neighbour of PW-1-informant – On the
                                                                           C
fateful day, when PW-1 went out of the house, appellant took four
year old daughter of PW-1 to the bushes – He removed his own
clothes as well as clothes of the victim girl and fondled her private
parts and penetrated his finger into the vagina of the victim girl –
Some persons spotted the accused and caught him red handed –
Trial Court as well as the High Court convicted the accused for the        D
offences under s.5 of the POCSO Act punishable under s.6 of the
POCSO Act – On appeal, held: It was 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 in
her body – There was redness and swelling around the vagina found
by the doctor before whom the victim girl narrated the entire incident     E
– Case fall under s.3(b) of the POCSO Act and it can be said to be
penetrative sexual assault – Considering s.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 s.6 of            F
the POCSO Act – Therefore, both, the Trial Court as well as the
High Court rightly convicted the accused for the offences under
s.5 of the POCSO Act punishable under s.6 of the POCSO Act.
      Protection of Children from Sexual Offences Act, 2012: Object
and purpose of enactment of the POCSO Act – The POCSO Act has
                                                                           G
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 – The POCSO
Act has been enacted keeping in mind Arts.15 and 39 of the
Constitution of India.                                                     H
                                 1083
1084            SUPREME COURT REPORTS                        [2022] 1 S.C.R.


 A            Sentence/Sentencing: Offence against children of sexual
       nature – Punishment for – Held: Any act of sexual assault or sexual
       harassment to the children should be viewed very seriously and all
       such offences of sexual assault, sexual harassment on the children
       have to be dealt with in a stringent manner and no leniency should
       be shown to a person who has committed the offence under the
 B
       POCSO Act – By awarding a suitable punishment commensurate
       with the act of sexual assault or sexual harassment, a message must
       be conveyed to the society at large that, if anybody commits any
       offence under the POCSO Act of sexual assault, sexual harassment
       or use of children for pornographic purposes they shall be punished
 C     suitably and no leniency shall be shown to them – Cases of sexual
       assault or sexual harassment on the children are instances of
       perverse lust for sex where even innocent children are not spared
       in pursuit of such debased sexual pleasure – Exploitation of children
       in such a manner is a crime against humanity and the society –
 D     Therefore, the children and more particularly the girl child deserve
       full protection and need greater care and protection whether in the
       urban or rural areas – No leniency can be shown to an accused
       commits the offences under the POCSO Act, 2012 – Protection of
       Children from Sexual Offences Act, 2012.

 E           Sentence/Sentencing: Accused held guilty for committing
       ‘aggravated penetrative sexual assault’ – Plea for leniency in
       sentencing – Held: Accused was aged approximately 65 years of
       age at the time of commission of offence – He was a neighbour of
       the victim girl – He took advantage of the absence of her parents,
       when her mother went to fetch water and her father had gone to
 F     work – He was found to have committed aggravated penetrative
       sexual assault on a girl child aged four years, which demonstrates
       the mental state or mindset of the accused – As a neighbour, in fact,
       it was the duty of the accused to protect the victim girl when alone
       rather than exploiting her innocence and vulnerability – He instead
 G     of showing fatherly love, affection and protection to the child against
       the evils of the society, rather made her the victim of lust – It is a
       case where trust has been betrayed and social values are impaired
       – Therefore, the accused as such does not deserve any sympathy
       and/or any leniency – At the relevant time, the minimum punishment
       provided for the offence under s.6 of the POCSO Act, 2012 was ten
 H
           NAWABUDDIN v. STATE OF UTTARAKHAND                           1085


years RI and which may extend to imprisonment for life – Accused        A
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.
                                                                        B
      Partly allowing the appeal, the Court
       HELD: 1. 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         C
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        D
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          E
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           F
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]
      2. As per Section 3 of the Act, a person is said to commit
‘penetrative sexual assault’ if-(b) he inserts, to any extent, any      G
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
                                                                        H
1086            SUPREME COURT REPORTS                      [2022] 1 S.C.R.


 A     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
 B
       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
 C     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]
             3. It can be seen from the Statement of objects and reasons
 D     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
 E     establishment of special courts for trial of such offences and for
       matters connected therewith and incidental thereto.
       [Para 9.3][1096-B-D]
             Eera v. State (NCT of Delhi) (2017) 15 SCC 133 : [2017] 7
             SCR 924; Alakh Alok Srivastava v. Union of India & Ors.
 F           (2018) 17 SCC 291 : [2018] 6 SCR 972 – relied on
              4. The POCSO Act has been enacted keeping in mind
       Article 15 and 39 of the Constitution of India. Article 15 of the
       Constitution, inter alia, confers upon the State powers to make
       special provision for children. Article 39, inter alia, provides that
 G     the State shall in particular direct its policy towards securing that
       the tender age of children are not abused and their childhood
       and youth are protected against exploitation and they are given
       facilities to develop in a healthy manner and in conditions of
       freedom and dignity. To achieve the goal as per Article 15 and 39
 H
           NAWABUDDIN v. STATE OF UTTARAKHAND                            1087


of the Constitution, the legislature has enacted the Protection of       A
Children from Sexual Offences Act, 2012.As noted in the
Statement of objects and reasons, as per the United Nations
Convention on the Rights of Children, to which India is a
signatory to the treaty, the State Parties to undertake all
appropriate national, bilateral and multilateral measures to
                                                                         B
prevent (a) the inducement or coercion of a child to engage in
any unlawful sexual activity; (b) the exploitative use of children
in prostitution or other unlawful sexual practices; and (c) the
exploitative use of children in pornographic performances and
materials. The general comment No.13 on the Convention
specifically dealt with the right of the child to freedom from all       C
forms of violence and it has observed that “no violence against
children is justifiable; all violence against children is preventable”
[Paras 9.4, 9.5][1096-D-G]
       5. By awarding a suitable punishment commensurate with
the act of sexual assault, sexual harassment, a message must be          D
conveyed to the society at large that, if anybody commits any
offence under the POCSO Act of sexual assault, sexual
harassment or use of children for pornographic purposes they
shall be punished suitably and no leniency shall be shown to them.
Cases of sexual assault or sexual harassment on the children are
instances of perverse lust for sex where even innocent children          E
are not spared in pursuit of such debased sexual pleasure.
Exploitation of children in such a manner is a crime against
humanity and the society. Therefore, the children and more
particularly the girl child deserve full protection and need greater
care and protection whether in the urban or rural areas. No              F
leniency can be shown to an accused who has committed the
offences under the POCSO Act, 2012 and particularly when the
same is proved by adequate evidence before a court of law.
[Para 10][1097-E-G, H; 1098-A, C-D]
      State of Rajasthan v. Om Prakash (2002) 5 SCC 745 :                G
      [2002] 3 SCR 753 ; Nipun Saxena v. Union of India
      (2019) 2 SCC 703 : [2018] 14 SCR 755 – relied on.



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1088            SUPREME COURT REPORTS                      [2022] 1 S.C.R.


 A            6. In the present case, the accused was aged approximately
       65 years of age at the time of commission of offence. He was a
       neighbour of the victim girl. He took advantage of the absence of
       her parents, when her mother went to fetch water and her father
       had gone to work. He is found to have committed aggravated
       penetrative sexual assault on a girl child aged four years, which
 B
       demonstrates the mental state or mindset of the accused. As a
       neighbour, in fact, it was the duty of the accused to protect the
       victim girl when alone rather than exploiting her innocence and
       vulnerability. The victim was barely a four years girl. He instead
       of showing fatherly love, affection and protection to the child
 C     against the evils of the society, rather made her the victim of
       lust. It is a case where trust has been betrayed and social values
       are impaired. Therefore, the accused as such does not deserve
       any sympathy and/or any leniency. [Para 10.1][1098-D-G]
              7. However, the punishment provided for the offence under
 D     Section 6, as it stood prior to its amendment and at the time of
       commission of the offence in the instant case for aggravated
       penetrative sexual assault was rigours imprisonment for a term
       which shall not be less than ten years but which may extend to
       imprisonment for life and shall also be liable to fine. Now as per
       the amended Section 6 with effect from 16.08.2019, the minimum
 E     punishment provided is twenty years and which may extend to
       imprisonment for life, which shall mean imprisonment for the
       remainder of natural life of that person, and shall also be liable to
       fine, or with death. Therefore, at the relevant time, the minimum
       punishment provided for the offence under Section 6 of the
 F     POCSO Act, 2012 was ten years RI and which may extend to
       imprisonment for life. It is reported that today the accused is
       aged 70-75 years of age and it is also reported that he is suffering
       from Tuberculosis (TB). Therefore, considering such mitigating
       circumstances if the life sentence is converted to fifteen years
       RI and the fine imposed by the Trial Court confirmed by the High
 G     Court to be maintained, it can be said to be an adequate
       punishment commensurate with the offence committed by the
       accused. [Para 10.1][1098-G-H; 1099-A-C]


 H
            NAWABUDDIN v. STATE OF UTTARAKHAND                               1089


                        Case Law Reference                                   A
[2017] 7 SCR 924                   relied on               Para 9.1
[2018] 6 SCR 972                   relied on               Para 9.2
[2002] 3 SCR 753                  relied on                Para 10
[2018] 14 SCR 755                 relied on                Para 10           B
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
144 of 2022.
       From the Judgment and Order dated 22.08.2019 of the High Court
of Uttarakhand at Nainital in Criminal Appeal No.280 of 2018.
                                                                             C
      Saju Jacob, Dinesh Moorjani, Sadaf Vali, Devansh Gupta, Ms.
Mili Verma, Ms. Aruna Gupta, Advs. for the Appellant.
     Krishnam Mishara, Jatinder Kumar Bhatia, Advs. for the
Respondent.
      The Judgment of the Court was delivered by                             D

      M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 22.08.2019 passed by the High Court of Uttarakhand at
Nainital in Criminal Appeal No. 280 of 2018 by which the High Court          E
has dismissed the said appeal preferred by the accused – appellant herein
and has confirmed the conviction of the accused for the offences
punishable under Sections 376(2)(i) of IPC and Section 5/6 of the
Protection of Children From Sexual Offences Act, 2012 (hereinafter
referred to as “POCSO Act”), the original accused has preferred the
present appeal.                                                              F
         2. That as per the case of the prosecution on 17.06.2016 at about
5:00 pm, the first informant (PW-1) had gone to fetch water and her
husband was out for work. At that time, her daughter (victim girl) aged
four years was all alone in the house. The accused – appellant herein
who was a neighbour of PW-1, enticed and took the victim girl in the         G
bushes to rape her. However, at that time the accused was spotted by
some persons naked in the process of raping the victim girl. The accused
and the victim girl were disrobed. The people who had gathered around
caught the accused red handed and handed him over to the police. That
a first information report was lodged by PW-1 – mother of the victim girl
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1090             SUPREME COURT REPORTS                            [2022] 1 S.C.R.


 A     for the offences punishable under Sections 376 read with 511 of IPC
       and Section 3/4 of the POCSO Act. The victim girl was medically
       examined by PW-10 – Dr. Vandana Sundriyal on 17.06.2016. During
       the course of investigation the statement of the victim girl as well as the
       witnesses were recorded. After conclusion of the investigation the
       investigating officer filed the chargesheet against the accused for the
 B
       offences punishable under Section 376(2)(F) of IPC and Section 3/4 of
       the POCSO Act. The charges were framed against the accused for the
       offences punishable under Section 376(2)(i) of IPC and Section 5/6 of
       the POCSO Act. The accused denied the charges and claimed to be
       tried. Therefore, he was tried by the learned Special Judge (POCSO
 C     Act) for the aforesaid offences.
               2.1 To prove the charges against the accused and to prove the
       case, the prosecution examined as many as thirteen witnesses including
       PW-1 – mother of the victim girl and PW-10 – Dr. Vandana Sundriyal
       who examined the victim girl on 17.06.2016. After closure of the
 D     prosecution evidence, statement of the accused under Section 313 of
       Cr.PC was recorded. His case was of total denial. On appreciation of
       evidence and more particularly relying upon the deposition of PW-10 -
       Dr. Vandana Sundriyal before whom the victim girl narrated the entire
       incident, the Trial Court held the accused guilty for the offences punishable
       under Section 376(2)(i) of IPC and Section 6 of the POCSO Act, 2012.
 E     The Trial Court sentenced the accused to undergo life imprisonment and
       also directed to pay monetary fine of Rs.50,000/-. The Trial Court also
       passed an order that out of the amount of fine of Rs.50,000/-, Rs.30,000/
       - shall be paid to the victim girl as compensation.
              3. Feeling aggrieved and dissatisfied with the impugned judgment
 F     and order of conviction and sentence passed by the learned Trial Court/
       Special Judge (POCSO Act), the accused preferred an appeal before
       the High Court. Before the High Court, amongst other grounds, one of
       the grounds was that the case would not fall under Section 5/6 of the
       POCSO Act and at the most the case may fall under Section 7/8 of the
 G     POCSO Act as there was no penetration and at the most and even as
       per the case of the prosecution the accused had tried to commit the
       rape. By the detailed impugned judgment and order, the High Court has
       dismissed the said appeal and has confirmed the conviction of the accused
       and the sentence of life imprisonment. Feeling aggrieved and dissatisfied
       with the impugned judgment and order passed by the High Court, the
 H     accused has preferred the present appeal.
            NAWABUDDIN v. STATE OF UTTARAKHAND                                1091
                     [M. R. SHAH, J.]

       4. Shri Saju Jacob, learned counsel appearing on behalf of the         A
accused – appellant has vehemently submitted that in the facts and
circumstances of the case the High Court has committed a grave error
in dismissing the appeal and confirming the judgment and order of
conviction passed by the learned Trial Court convicting the accused for
the offences punishable under Section 5/6 of the POCSO Act.
                                                                              B
      4.1 It is submitted that in fact the witnesses have not supported
the case of the prosecution. It is submitted that the accused could not
have been convicted on the sole testimony of PW-10 - Dr. Vandana
Sundriyal.
       4.2 It is further submitted by learned counsel appearing on behalf     C
of the accused that even in the present case so called recording of the
incident in the mobile has not been established and proved by the
prosecution by leading any cogent evidence.
       4.3 It is further submitted by learned counsel appearing on behalf
of the accused that even as per the prosecution case, it was only an          D
attempt of aggravated sexual assault. It is submitted that in absence of
penetration and aggravated penetrative sexual assault, the appellant could
not have been convicted for the offences punishable under Section 5/6
of the POCSO Act.
       4.4 It is vehemently contended by learned counsel appearing on         E
behalf of the accused that even considering the prosecution case as it is,
at the most the case would fall under sexual assault punishable under
Section 8 of the POCSO Act. It is urged that in any case the case would
not fall under aggravated penetrative sexual assault.
       4.5 In the alternative, it is submitted by learned counsel appearing   F
on behalf of the accused that at the time of the alleged incident accused
was aged approximately 65 years of age and as on today he is 75 years
of age. It is submitted that as per Section 6 of the POCSO Act as it
stood on the date of incident the minimum sentence provided was ten
years but which may extend to imprisonment for life. It is therefore
submitted that imposing life sentence is too harsh and disproportionate       G
to the offence committed. Therefore, it is prayed to impose a lesser
punishment than the life imprisonment.
      5. Shri Krishnam Mishara, learned counsel appearing on behalf
of the State of Uttarakhand, while opposing the present appeal has
vehemently submitted that in the present case as such the prosecution         H
1092             SUPREME COURT REPORTS                            [2022] 1 S.C.R.


 A     has proved the case beyond doubt. It is submitted that PW-10 - Dr.
       Vandana Sundriyal who is an independent witness has fully supported
       the case of the prosecution.
              5.1 It is further contended by learned counsel appearing on behalf
       of the State that this is a case of penetrative sexual assault as defined
 B     under Section 3(b) of the POCSO Act. It is submitted that as per Section
       5(m) whoever commits penetrative sexual assault on a child below twelve
       years, it can be said to be an aggravated penetrative sexual assault
       punishable under Section 6 of the POCSO Act.
              5.2 It is urged by learned counsel appearing on behalf of the State
 C     that the accused in the present case was a neighbour of the victim girl;
       he misused his position as a neighbour and tried to penetrate his finger
       and then tried to commit rape on the minor girl. However, before he
       could succeed in committing rape, he was caught red handed by the
       local persons. It is submitted that the entire incident was narrated by the
       victim girl to Dr. Vandana Sundriyal – PW-10. It is therefore submitted
 D     that when the accused misused his position as a neighbour and committed
       the offence under the POCSO Act upon a girl aged four years and
       looking to the object and purpose for which the POCSO Act has been
       enacted, no leniency should be shown to the accused. It is submitted
       that in the facts and circumstances of the case the accused does not
 E     deserve any sympathy or any leniency.
             5.3 Making the above submissions it is prayed to dismiss the present
       appeal.
             6. We have heard the learned counsel appearing on behalf of the
       respective parties at length.
 F
              7. At the outset it is required to be noted that 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
 G     – 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 Dr. Vandana Sundriyal – PW-10, who examined
       the victim girl on 17.06.2016 and before whom the victim girl narrated
       the entire incident to her which was recorded in exhibit A-6 – medical
 H
             NAWABUDDIN v. STATE OF UTTARAKHAND                                  1093
                      [M. R. SHAH, J.]

examination report. As per Dr. Vandana Sundriyal – PW-10 who is an               A
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
                                                                                 B
prosecution, we see no reason to doubt the deposition of PW-10 -
Dr. Vandana Sundriyal, who is an independent witness. There are no
allegations on behalf of the accused that there was any enmity with
Dr. Vandana Sundriyal. Therefore, we are of the opinion that it is safe to
convict the accused relying upon the deposition of PW-10 - Dr. Vandana
Sundriyal before whom the victim girl narrated the entire incident which         C
was recorded in the medical examination report namely exhibit A-6.
Thus, it has been established and proved by the prosecution that the
accused took the victim girl away from the house; took her deep into the
bushes; disrobed her and removed his clothes as well; penetrated his
finger in the vagina, due to which the victim girl felt pain and irritation in
                                                                                 D
urination and he was about to force himself upon her and commit the
offence of rape when he was caught red handed.
       7.1 Now the next question which is posed for the consideration of
this Court is, what offence the accused had committed. The Trial Court
convicted the accused for the offences punishable under Sections 376(2)(i)
of IPC and Section 5/6 of the POCSO Act. It is the case on behalf of             E
the accused that at the most it can be said to be an attempt to commit
penetrative sexual assault and therefore at the most it can be said to be
the case of sexual assault under Section 7 of the POCSO Act punishable
under Section 8 of the POCSO Act. Therefore, it is the case on behalf
of the accused that as it is neither a case of penetrative sexual assault        F
nor aggravated penetrative sexual assault, therefore the punishment of
life imprisonment imposed was not warranted and at the highest he could
have been punished with imprisonment of either description for a term
which shall not be less than three years but which may extend to five
years, and shall also be liable to fine.
                                                                                 G
      8. While appreciating the aforesaid submissions the relevant
provisions of the POCSO Act are required to be referred to and
considered. Section 3 of the POCSO Act defines ‘penetrative sexual
assault’. 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
                                                                                 H
1094            SUPREME COURT REPORTS                           [2022] 1 S.C.R.


 A     a part of the body, not being the penis, into the vagina………. Section 4
       provides ‘punishment for penetrative sexual assault’. 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 penetrative sexual assault. Section 6 provides
       ‘punishment for aggravated penetrative sexual assault.’ In the present
 B
       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. We are of the opinion
       that therefore the case would fall under Section 3(b) of the POCSO Act
 C     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
 D
       offences under Section 5 of the POCSO Act punishable under Section 6
       of the POCSO Act.
              9. Now in so far as the prayer on behalf of the accused – appellant
       herein to take a lenient view in the matter by considering mitigating
       circumstances of old age of the accused and to alter the life imprisonment
 E     to any other punishment is concerned, the same has to be considered in
       light of the object and purpose of enactment of the POCSO Act.
            9.1 In the case of Eera Vs. State (NCT of Delhi), (2017) 15
       SCC 133, this Court has observed on the Statement and Objects and
       Reasons of POCSO Act in para 20 as under: -
 F
             “20. The purpose of referring to the Statement of Objects and
             Reasons and the Preamble of the Pocso Act is to appreciate that
             the very purpose of bringing a legislation of the present nature is
             to protect the children from the sexual assault, harassment and
             exploitation, and to secure the best interest of the child. On an
 G           avid and diligent discernment of the Preamble, it is manifest that it
             recognises the necessity of the right to privacy and confidentiality
             of a child to be protected and respected by every person by all
             means and through all stages of a judicial process involving the
             child. Best interest and well-being are regarded as being of
 H           paramount importance at every stage to ensure the healthy
            NAWABUDDIN v. STATE OF UTTARAKHAND                                  1095
                     [M. R. SHAH, J.]

      physical, emotional, intellectual and social development of the child.    A
      There is also a stipulation that sexual exploitation and sexual abuse
      are heinous offences and need to be effectively addressed. The
      Statement of Objects and Reasons provides regard being had to
      the constitutional mandate, to direct its policy towards securing
      that the tender age of children is not abused and their childhood is
                                                                                B
      protected against exploitation and they are given facilities to develop
      in a healthy manner and in conditions of freedom and dignity.
      There is also a mention which is quite significant that interest of
      the child, both as a victim as well as a witness, needs to be
      protected. The stress is on providing child-friendly procedure.
      Dignity of the child has been laid immense emphasis in the scheme         C
      of legislation. Protection and interest occupy the seminal place in
      the text of the Pocso Act.”
     9.2 In the case of Alakh Alok Srivastava Vs. Union of India
& Ors.(2018) 17 SCC 291, in para 14 and 20, it is observed as under: -
                                                                                D
      “14. At the very outset, it has to be stated with authority that
      the Pocso Act is a gender neutral legislation. This Act has been
      divided into various chapters and parts therein. Chapter II of the
      Act titled “Sexual Offences Against Children” is segregated into
      five parts. Part A of the said Chapter contains two sections, namely,
      Section 3 and Section 4. Section 3 defines the offence of                 E
      “Penetrative Sexual Assault” whereas Section 4 lays down the
      punishment for the said offence. Likewise, Part B of the said
      Chapter titled “Aggravated Penetrative Sexual Assault and
      Punishment therefor” contains two sections, namely, Section 5
      and Section 6. The various sub-sections of Section 5 copiously            F
      deal with various situations, circumstances and categories of
      persons where the offence of penetrative sexual assault would
      take the character of the offence of aggravated penetrative sexual
      assault. Section 5(k), in particular, while laying emphasis on the
      mental stability of a child stipulates that where an offender commits
                                                                                G
      penetrative sexual assault on a child, by taking advantage of the
      child’s mental or physical disability, it shall amount to an offence
      of aggravated penetrative sexual assault.”
      “20. Speaking about the child, a three-Judge Bench in M.C.
      Mehta v. State of T.N. (1996) 6 SCC 756
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1096               SUPREME COURT REPORTS                          [2022] 1 S.C.R.


 A                  “1. … “child is the father of man”. To enable fathering of a
              valiant and vibrant man, the child must be groomed well in the
              formative years of his life. He must receive education, acquire
              knowledge of man and materials and blossom in such an
              atmosphere that on reaching age, he is found to be a man with a
              mission, a man who matters so far as the society is concerned.”
 B
              9.3 As it can be seen from the Statement of objects and reasons
       of the POCSO Act 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
 C     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.
              9.4 At this stage, it is required to be noted that the POCSO Act
       has been enacted keeping in mind Article 15 and 39 of the Constitution
 D     of India. Article 15 of the Constitution, inter alia, confers upon the State
       powers to make special provision for children. Article 39, inter alia,
       provides that the State shall in particular direct its policy towards securing
       that the tender age of children are not abused and their childhood and
       youth are protected against exploitation and they are given facilities to
 E     develop in a healthy manner and in conditions of freedom and dignity. To
       achieve the goal as per Article 15 and 39 of the Constitution, the legislature
       has enacted the Protection of Children from Sexual Offences Act, 2012.
             9.5 As noted in the Statement of objects and reasons, as per the
       United Nations Convention on the Rights of Children, to which India is a
 F     signatory to the treaty, the State Parties to undertake all appropriate
       national, bilateral and multilateral measures to prevent (a) the inducement
       or coercion of a child to engage in any unlawful sexual activity; (b) the
       exploitative use of children in prostitution or other unlawful sexual
       practices; and (c) the exploitative use of children in pornographic
       performances and materials.
 G
              Article 19 of the Convention states the following: -
              1.     States Parties shall take all appropriate legislative,
                     administrative, social and educational measures to protect
                     the child from all form/s of physical or mental violence,
                     injury or abuse, neglect or negligent treatment, maltreatment
 H
            NAWABUDDIN v. STATE OF UTTARAKHAND                                  1097
                     [M. R. SHAH, J.]

             or exploitation, including sexual abuse, while in the care of      A
             parent(s), legal guardian(s) or any other person who has
             the care of the child.
      2.     Such protective measures should, as appropriate, include
             effective procedures for the establishment of social
             programmes to provide necessary support for the child and          B
             for those who have the care of the child, as well as for
             other forms of prevention and for identification, reporting,
             referral, investigation, treatment and follow-up of instances
             of child maltreatment described heretofore, and, as
             appropriate, for judicial involvement.
                                                                                C
       The general comment No.13 on the Convention specifically dealt
with the right of the child to freedom from all forms of violence and it
has observed that “no violence against children is justifiable; all violence
against children is preventable”
       10. Keeping in mind the aforesaid objects and to achieve what            D
has been provided under Article 15 and 39 of the Constitution to protect
children from the offences of sexual assault, sexual harassment, the
POCSO Act, 2012 has been enacted. Any act of sexual assault or sexual
harassment to the children should be viewed very seriously and all such
offences of sexual assault, sexual harassment on the children have to be
dealt with in a stringent manner and no leniency should be shown to a           E
person who has committed the offence under the POCSO Act. By
awarding a suitable punishment commensurate with the act of sexual
assault, sexual harassment, a message must be conveyed to the society
at large that, if anybody commits any offence under the POCSO Act of
sexual assault, sexual harassment or use of children for pornographic           F
purposes they shall be punished suitably and no leniency shall be shown
to them. Cases of sexual assault or sexual harassment on the children
are instances of perverse lust for sex where even innocent children are
not spared in pursuit of such debased sexual pleasure.
        Children are precious human resources of our country; they are          G
the country’s future. The hope of tomorrow rests on them. But
unfortunately, in our country, a girl child is in a very vulnerable position.
There are different modes of her exploitation, including sexual assault
and/or sexual abuse. In our view, exploitation of children in such a manner
is a crime against humanity and the society. Therefore, the children and
more particularly the girl child deserve full protection and need greater       H
1098             SUPREME COURT REPORTS                            [2022] 1 S.C.R.


 A     care and protection whether in the urban or rural areas. As observed
       and held by this Court in the case of State of Rajasthan Vs. Om
       Prakash, (2002) 5 SCC 745, children need special care and protection
       and, in such cases, responsibility on the shoulders of the Courts is more
       onerous so as to provide proper legal protection to these children. In the
       case of Nipun Saxena v. Union of India, (2019) 2 SCC 703, it is
 B
       observed by this Court that a minor who is subjected to sexual abuse
       needs to be protected even more than a major victim because a major
       victim being an adult may still be able to withstand the social ostracization
       and mental harassment meted out by society, but a minor victim will find
       it difficult to do so. Most crimes against minor victims are not even
 C     reported as very often, the perpetrator of the crime is a member of the
       family of the victim or a close friend. Therefore, the child needs extra
       protection. Therefore, no leniency can be shown to an accused who has
       committed the offences under the POCSO Act, 2012 and particularly
       when the same is proved by adequate evidence before a court of law.
 D            10.1 In the present case it is to be noted that the accused was
       aged approximately 65 years of age at the time of commission of offence.
       He was a neighbour of the victim girl. He took advantage of the absence
       of her parents, when her mother went to fetch water and her father had
       gone to work. He is found to have committed aggravated penetrative
       sexual assault (as observed hereinabove) on a girl child aged four years,
 E     which demonstrates the mental state or mindset of the accused. As a
       neighbour, in fact, it was the duty of the accused to protect the victim girl
       when alone rather than exploiting her innocence and vulnerability. The
       victim was barely a four years girl. The accused – appellant was the
       neighbour. The accused instead of showing fatherly love, affection and
 F     protection to the child against the evils of the society, rather made her
       the victim of lust. It is a case where trust has been betrayed and social
       values are impaired. Therefore, the accused as such does not deserve
       any sympathy and/or any leniency.
               However, the punishment provided for the offence under Section
 G     6, as it stood prior to its amendment and at the time of commission of the
       offence in the instant case for aggravated penetrative sexual assault
       was rigours imprisonment for a term which shall not be less than ten
       years but which may extend to imprisonment for life and shall also be
       liable to fine. Now as per the amended Section 6 with effect from
       16.08.2019, the minimum punishment provided is twenty years and which
 H
                NAWABUDDIN v. STATE OF UTTARAKHAND                              1099
                         [M. R. SHAH, J.]

may extend to imprisonment for life, which shall mean imprisonment for          A
the remainder of natural life of that person, and shall also be liable to
fine, or with death. Therefore, at the relevant time the minimum
punishment provided for the offence under Section 6 of the POCSO
Act, 2012 was ten years RI and which may extend to imprisonment for
life. It is reported that today the accused is aged 70-75 years of age and
                                                                                B
it is also reported that he is suffering from Tuberculosis (TB). Therefore,
considering such mitigating circumstances we are of the opinion that if
the life sentence is converted to fifteen years RI and the fine imposed
by the Trial Court confirmed by the High Court to be maintained, it can
be said to be an adequate punishment commensurate with the offence
committed by the accused.                                                       C
       11. In view of the above discussion the impugned judgment and
order passed by the High Court and the learned Special Court convicting
the accused for the offences punishable under Sections 376(2)(i) of IPC
and Section 5 of the POCSO Act and imposing the punishment under
Section 6 of the POCSO Act is hereby upheld. The accused is rightly             D
held guilty for the aforesaid offences. However, for the reasons assigned
hereinabove the sentence of life imprisonment is converted to that of
fifteen (15) years RI with fine/compensation imposed by the Trial Court
confirmed by the High Court. Now the accused shall undergo fifteen
(15) years RI with fine imposed by the Trial Court confirmed by the
High Court for the aforesaid offences instead of life imprisonment. The         E
present appeal is partly allowed to the aforesaid extent only.


Devika Gujral                                          Appeal partly allowed.

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