Patna High Court orders release of sexagenarian after 10 years due to wrongful POCSO conviction, enhances compensation for the victim.

Patna High Court has ordered the release of a man in his sixties, previously convicted by a Sessions Court for the rape of his 12-year-old niece, citing the application of an incorrect provision of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The High Court observed that the trial court had mistakenly sentenced the appellant under Section 6 of the Act, which was inapplicable to the offense committed in 2014.

A division bench comprising Justices Jitendra Kumar and Ashutosh Kumar noted, “The trial court applied incorrect statutory provisions to punish the convict/appellant by sentencing him under Section 6 of the POCSO Act, sentencing him to rigorous imprisonment for the remainder of his natural life. The trial court failed to recognize that the offense occurred in 2014, at which time such punishment was not prescribed under Section 6 of the Act.”

The bench further explained that the offense fell under Section 4 of the POCSO Act rather than Section 6, as the victim was above 12 years of age. “Under Sections 4 and 6 of the POCSO Act, penetrative sexual assault against a child above 12 years does not qualify as aggravated penetrative sexual assault as defined under Section 5. Therefore, the offense is punishable under Section 4,” the bench clarified.

The court emphasized that, according to Section 5, aggravated penetrative sexual assault applies only to children below 12 years of age. For children above 12, the appropriate provision is Section 4 of the Act. It added that under the POCSO Act, as it existed before the 2019 amendment, Section 4 prescribed a punishment of 7 years to life imprisonment for penetrative sexual assault, a penalty consistent with Section 376(1) of the Indian Penal Code (IPC).

According to the prosecution, the appellant, a relative of the victim’s family, took his 10-year-old niece to Banaras under the pretext of assisting his daughter, who was expecting a child. While in Banaras, the appellant allegedly assaulted the victim after administering an intoxicant.

The Sessions Court had sentenced the appellant to rigorous imprisonment for life and a fine of Rs. 50,000/- under Section 6 of the POCSO Act. However, the High Court ruled that the appellant's 10-year incarceration, which began on May 20, 2014, was sufficient to serve the ends of justice.

“In light of the appellant's advanced age and the overall circumstances, a 10-year imprisonment is appropriate. Since the appellant has already spent over 10 years in custody, he is sentenced to the period already served,” the court stated.

The court also noted that the trial court had awarded Rs. 4,00,000/- as compensation to the victim, payable by the District Legal Services Authority (DSLSA). It directed that this amount be increased by Rs. 1,00,000/- given the victim's young age, with the enhanced compensation to be paid within two months. The Rs. 50,000/- fine imposed on the appellant was upheld, with the amount to be paid to the victim. Consequently, the appeal was allowed, and the court directed the appellant’s release.