Judgment & Order

M. Zothankhuma, J.

1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. J. Islam, learned counsel for the appellant. Also heard Ms. A. Begum, learned Additional Public Prosecutor, Assam for the State and Mr. H. Talukdar, learned counsel for the respondent no.2

2. The appellant has put to challenge the impugned judgment dated 13.12.2022 passed by the Court of the learned Additional Sessions-cum-Special Judge (POCSO) at Barpeta in Special POCSO Case no.101/2018, by which the appellant has been convicted under Section 4(2) of the POCSO Act, 2012 and sentenced to undergo rigorous imprisonment for 20 years with a fine of Rs.15,000/-, in default to undergo rigorous imprisonment for another 2 years.

3. The appellant’s counsel submits that the incidents of rape had occurred in between 18.06.2018 till 23.06.2018, when Section 4 of the POCSO Act, 2012 was as follows :

                   “Punishment for penetrative sexual assault - Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to imprisonment for life, and shall also be liable to fine”.

4. However, the appellant has been convicted and sentenced under the amended Section 4(2) of the POCSO Act, 2012, after insertion of Section 4(2) by way of Act 25/2019, which came into effect on 06.08.2019. The learned Senior Counsel thus submits that even if the appellant had been convicted under Section 4 of POCSO Act, 2012, he could not have been sentenced under Section 4(2), as the said sub-Section was not a part of the un-amended Section 4 of the POCSO Act, 2012, at the time the incident/offence had occurred.

5. The second ground of challenge to the impugned judgment by the appellant, is that the age of the victim had not been proved by the prosecution, inasmuch as, the original Birth Certificate of the victim had not been produced before the Court. The third ground of challenge to the impugned judgment is that the appellant had not raped the victim. In respect of the third ground of challenge, the alternative submission made by the learned Senior Counsel for the appellant, is to the effect that if at all there was any sexual intercourse between the appellant and the victim, the same was consensual in nature.

6. The learned Additional Public Prosecutor for the State and the learned counsel for the respondent no.2 submit that they have no quarrel with the submission made by the learned Senior Counsel, with respect to the first ground of challenge made to the impugned judgment, insofar as the conviction of the appellant under Section 4 of the POCSO Act, 2012 would have to be in terms of the un-amended section and not the amended section. With regard to the dispute sought to be raised by the appellant as regards the age of the victim at the time of incident, the learned Additional Public Prosecutor has submitted the original Birth Certificate of the victim issued by the Government of Assam, Department of Health Services, which shows that the victim’s Date of Birth was 16.08.2003.

7. The counsels for the respondents further submit that the evidence of the victim (PW-1) shows that she had been subjected to sexual intercourse by the appellant more than once. Further, the testimony of the victim had been corroborated by her statement made under Section 164 Cr.P.C, the Medical Examination Report and evidence adduced by PW-3, who was the Doctor who had examined the victim. They thus submit that even if the sexual intercourse between the two was consensual, the minor victim girl was incapable of giving consent. As such, there was no infirmity with the conviction of the appellant by the learned Trial Court and accordingly, the impugned judgment should not be interfered with.

8. We have heard the learned counsels for the parties.

9. The prosecution case in brief is that an FIR dated 19.06.2018 was submitted by PW-2, who is the uncle of the victim to the O.C of the Baghbar Police Station to the effect that the appellant had abducted the victim on 19.06.2018 at around 1:30 a.m. Pursuant to the FIR, Baghbar P.S. Case No.147/2018 dated 19.06.2018 under Section 365/34 IPC was registered. Thereafter, Section 4 of the POCSO Act was also added to the police case. During investigation of the case, the victim was recovered on 23.06.2018 from Mohkhowa Chapari. Thereafter the Investigating Officer submitted a Chargesheet on finding a prima facie case under Section 365/34 IPC read with Section 4 of the POCSO Act against the appellant and one co-accused Jiaur Rahman.

10. The learned Trial Court thereafter examined 6 Prosecution Witnesses and one Defence Witness. After examination of the appellant and co-accused under Section 313 Cr.P.C, the learned Trial Court came to a finding that the Prosecution had been able to succeed in establishing the guilt of the appellant only under Section 4(2) of the POCSO Act, 2012. However, it had failed to establish a case of kidnapping under Section 365 IPC against the appellant and the co-accused. Consequently, the co-accused was acquitted, while the appellant herein was convicted and sentenced by the learned Trial Court under Section 4(2) of the POCSO Act, 2012, by holding at paragraph 30 as follows :-

                   “………In the present case the accused is found to be of young age, with no history of previous conviction in any criminal offence. That apart considering the facts and circumstances that has emerged in the evidence, where the possibility of accused indulging in sexual intercourse with the minor victim out of love cannot be ruled out completely, I deem it fit to punish the accused with the minimum punishment provided under Section 4(2) of the POCSO Act.”

11. The fact that the victim was below 16 years of age is proved by the original Birth Certificate produced by the learned Additional Public Prosecutor, which is not challenged by the appellant’s counsel. The only issues that have to be decided is whether any rape had been committed upon the victim by the appellant and whether the appellant could have been convicted under Section 4(2) of the POCSO Act, 2012, when there was no Section 4(2) of the POCSO Act at the time of commission of the offence.

12. The statement of the victim under Section 164 Cr.P.C is to the effect that she knew the appellant for 7/8 months and that he loved her. She further stated that the appellant had kidnapped her on 18.06.2018, by tying a handkerchief around her face. When she regained her senses, she came to know that she had been taken to a riverine area, which was a temporary river island. She further stated in her statement under Section 164 Cr.P.C. that the appellant had established physical relationship with her for 3/4 days.

13. The evidence of the victim (PW-1) is to the effect that she had been kidnapped by the appellant and that she had been raped for 3/4 days.

14. The evidence of PW-3, who is the Doctor, who examined the victim on 23.06.2018 is to the effect that the hymen of the victim had an old tear at 6 O’clock position. The final opinion of PW-3 is to the effect that the age of the victim was 14 years and that evidence of recent sexual intercourse was not detected.

15. As can be seen from the above evidence of PW-1 and PW-3, read with the statement of the victim under Section 164 Cr.P.C, the testimony of the victim has been corroborated by her statement under Section 164 Cr.P.C and the medical evidence.

16. On considering the evidence of PW-1 & PW-3, we do not find any ground to doubt the truthfulness of the testimony of the victim and the same inspires our confidence, though there is a lurking suspicion in our minds that the sexual act on the part of the appellant with the victim may have been consensual in nature. However, keeping in view the original Birth Certificate of the victim which has been produced today and the fact that she was less than 16 years of age at the time of the incident, her consent cannot be said to be the consent of an adult, inasmuch as, a minor would not be able to give consent for having a sexual relationship. In that view of the matter, we are of the view that there has been penetrative sexual assault on the victim by the appellant in terms of Section 3 of POCSO Act, 2012.

17. The only remaining question to be decided is whether the appellant could be convicted under the amended Section 4(2) of POCSO Act, 2012, when the incident had occurred during the time when the un-amended Section 4 was in force.

18. In the case of Satauram Mandavi vs. State of Chhattisgarh & Another, reported in 2025 SCC OnLine SC 1516, the Supreme Court has held that the constitutional bar against retrospective imposition of a harsher penalty under Article 20(1) is clear and absolute. The learned Trial Court, in applying the enhanced sentence introduced by the 2019 Amendment had effectively subjected the appellant to a punishment greater than that which was permissible under the law in force at the time of commission of the offence, which was clearly violative of the bar contained in Article 20(1) of the Constitution of India.

19. Article 20(1) of the Constitution of India states as follows :

                   “20. Protection in respect of conviction for offences-

                   (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”

20. In view of the fact that the punishment which was permissible under Section 4 of POCSO Act, 2012 at the time of commission of the offence, only provided for awarding a minimum sentence of 7 years to life imprisonment, the sentencing of the appellant by the learned Trial Court under Section 4(2) of the POCSO Act, 2012 years is hit by Article 20(1) of the Constitution of India and the law laid down in this regard by the Supreme Court in the case of Satauram Mandavi (supra).

21. In view of the reasons stated above, the appellant has to be convicted under the un-amended Section 4 of POCSO Act, 2012 and sentenced in terms of the un-amended Section 4 of POCSO Act, 2012.

22. On the question of the sentence to be awarded to the appellant under the un-amended Section 4 of POCSO Act, 2012, the learned Senior Counsel for the appellant submits that the relationship between the victim and the appellant being consensual in nature, besides the appellant already having been behind bars for more than 4 years, the minimum sentence may be awarded to the appellant.

23. On the other hand, the counsels for the respondents submit that as it was the duty of the appellant, who was 27 years of age at the relevant time, besides being a teacher of the victim in the school attended by the victim, the appellant should have shunned the advances of the victim, if any, and should not have entered into any physical relationship with his student. They accordingly submit that the appellant should be punished for a term of not less than 10 years.

24. We have considered the submissions of the counsels on the sentence to be awarded to the appellant, as we find that the appellant is guilty of having committed the offence of penetrative sexual assault on the victim under Section 3, punishable under the un-amended Section 4 of the POCSO Act, 2012.

25. On considering the fact that the appellant was 27 years of age at the relevant point of time, besides being a teacher of the victim, it was the bounden responsibility of the appellant to have ensured that no physical sexual activity took place between the 27 year old teacher and his student, who was less than 16 years of age. In allowing the relationship to advance to a stage where there was sexual activity, the appellant, in our view, has broken the sacred trust of a student. A teacher plays a very major role in ensuring not only that education is imparted upon a student, but in moulding the character and the moral upbringing of a child, who is to become a responsible adult in future.

26. Keeping in view the fact that the appellant has indulged in sexual activity with a child, we are of the view that interest of justice would be served if the appellant is sentenced to undergo rigorous imprisonment for 9 (nine) years, with a fine of Rs.1,00,000/- (Rupees one lakh), in default to undergo rigorous imprisonment for 2 years under the un-amended Section 4 of the POCSO Act, 2012. The conviction of the appellant is thus sustained, while the sentence imposed by the learned Additional Sessions-cum-Special Judge (POCSO) at Barpeta in Special POCSO Case no.101/2018 vide judgment dated 13.12.2022 is accordingly modified, to the extent indicated above.

27. The appeal is accordingly disposed of.

28. Send back the TCR.