Patna High Court orders release of sexagenarian after 10 years imprisonment in POCSO case

The Patna High Court recently ordered the release of a man in his sixties from prison after finding that a trial court had invoked a wrong provision of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) while sentencing him to life imprisonment for the rape of his minor niece [Md. Mahmood Alam v. The State of Bihar]..The trial court had invoked Section 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act to sentence the convicted man (appellant) to life imprisonment. However, the High Court Bench of Justices Ashutosh Kumar and Jitendra Kumar found this to be a misapplication of the law for two reasons. “The alleged offence has been committed in the year 2014 and at that time there was no such punishment in Section 6 of the Act. Moreover, as per the provisions of Sections 4 and 6 of the POCSO Act, we find that the present case is covered under Section 4 of the POCSO Act and not under Section 6 of the POCSO Act, because the victim has been found to be above 12 years of age and hence, penetrative sexual assault committed against her does not come under aggravated penetrative sexual assault as defined under Section 5 of the POCSO Act,” the High Court explained..The Court eventually confirmed his conviction for the crime, albeit under Section 4 (punishment for penetrative sexual assault) of the POCSO Act and Section 376(1) (rape) of the Indian Penal Code (IPC).However, considering the appellant's old age, the Court opined that a 10-year prison sentence would be appropriate. Since the appellant had already been in custody for over 10 years, the Court decided to sentence him for the time already served and ordered his release from jail.“In view of the total facts and circumstances of the case, particularly the old age of the appellant, imprisonment of the appellant for 10 years would meet the ends of justice whereas the appellant has been already in custody for more than 10 years since 20.05.2014. Hence, he is sentenced to the period already spent in custody,” the Court said..The Court passed the ruling on an appeal filed by Mahmood Alam (appellant) who had earlier been sentenced to life imprisonment, along with a ₹50,000 fine, for raping a minor girl. The trial court had also ordered the payment of ₹4 lakhs as compensation to the victim.The appellant challenged the trial court's decision. Among other arguments, he claimed that he was falsely implicated in the case after he rejected a proposal by the victim's family to get her married to one of his sons.The High Court, however, dismissed this argument."There is no substance in the defence to say that the appellant has been falsely implicated on his refusal to get his son married with the victim. Moreover, in view of the cogent evidence about the appellant taking the victim to Banaras and staying at a lodge there for two days with her corroborates the testimony of the prosecutrix,” the Court said..Accordingly, the High Court partly allowed the appeal by holding the appellant guilty, but reducing his sentence to time already served. The Court also enhanced the compensation payable to the victim by an additional ₹1 lakh, and added that the ₹50,000 fine imposed on the appellant should also be paid to the victim. .Advocate Md. Ataul Haque represented the appellant, while Additional Public Prosecutor Abhimanyu Sharma appeared on behalf of the Sate..[Read Order]