The court has the discretion to consider the age and mitigating circumstances of the appellant in modifying the sentence, in accordance with the provisions under Section 376(2)(i) of the Indian Penal Code and Section 4 of the POCSO Act.

JUDGMENT :

CHAKRADHARI SHARAN SINGH, J.

The appellant has preferred this appeal under Section 374(2) of the Cr.P.C. putting to challenge the judgment of conviction dated 14.12.2017 and the order of sentence dated 19.12.2017, passed by the learned 1st Additional Sessions Judge cum Special Judge POCSO Act, East Champaran, Motihari, in POCSO Trial No. 25 of 2017 (arising out of Sugauli P.S. Case No. 326 of 2013), whereby the sole appellant has been convicted and sentenced as under:-

2. Both the sentences have been ordered to run concurrently.

3. Learned counsel appearing on behalf of the appellant, after some arguments, has submitted that without entering into the legality of the finding of conviction recorded by the trial court, this Court may with compassion consider the appellant's case on the point of sentence. He has submitted that the appellant has already remained in custody in connection with the criminal case since 24.10.2013. From his statement recorded under Section 313 of the Cr.P.C. before the trial court, it can be easily inferred that his age, as on the date of occurrence, was 20 years. He has submitted that long pendency of the trial and this appeal itself is a mitigating circumstance, which may be considered by this court while considering the term of sentence of imprisonment. He has further argued that considering the youth of the appellant and the chance of his reformation to become a good citizen and a productive member of the society, this Court may consider reducing the sentence of imprisonment for life, as has been imposed by the trial court, to an adequate period in accordance with the provisions under Section 376(2)(i) of the Indian Penal Code and Section 4 of the Protection of Children From Sexual Offences Act (for short “POCSO Act”) as the said provisions existed as on the date of the occurrence.

4. Mr. Abhimanyu Shrama, learned Additional Public Prosecutor representing the State does not have any objection to such submission made on behalf of the appellant.

5. In order to consider the submission made on behalf of the appellant, we must take note of the provision under Section 376(2)(i) of the Indian Penal Code, as the same existed on the date of occurrence till it was omitted by Act 22 of 2018 with effect from 21.04.2018. The said provision read as under:

“376(i) xxx xxx xxx

(2) Whoever,-commits rape on a woman when she is under 16 years of age.

xxx xxx xxx

shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.”

6. The POCSO Act has been enacted to protect the children from offences of sexual assault etc. A child has been defined under Section 2(d) of the POCSO Act. “Child” means as a person below the age of 18 years. Section 3 of the POCSO Act defines penetrative sexual assault. Section 4 of the POCSO Act, before its amendment with effect from 16.08.2019, read as under:

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

7. It is evident from the provision under Section 4 of the POCSO Act that before amendment with effect from 16.08.2019, the minimum sentence, which could be imposed for commission of offences punishable under the said provision, was seven years. There does not appear to be much controversy over the fact that the victim was less than 16 years of age as on the date of occurrence though a feeb