IMPORTANT POINT
Sentencing under the POCSO Act must adhere to the law in effect at the time of the offense, and courts can consider the duration of custody when determining appropriate sentences.

ORDER :

1. This criminal appeal under Section 374(2) Cr.P.C. has been preferred by the accused-appellant claiming the following relief:

“It is, therefore, most humbly and respectfully prayed that the appeal under section 374 (2) Cr.P.C. filed by the appellant may kindly be accepted and allowed and the impugned judgment passed by the learned Special Judge, Protection of Children from Sexual Offences Act, Churu on dated 09/01/2019 may kindly be quashed and be set aside and it is further prayed that the appellant may be acquitted from the offence u/s. 450 IPC and Sec. 3/4 Special Judge, Protection of Children from Sexual Offences Act, 2012 from the above mentioned charges / offences leveled against him and the appellant may be exonerated from the offences and charges or any other order which is in favour of the appellant may kindly be passed in the interest of justice.”

2. The appellant laid a challenge to the judgment of conviction and order of sentence dated 09.01.2019 passed by the learned Special Judge, Protection of Children From Sexual Offences Act Cases, Distt. Churu, in Session Case No.52/2018 (14/2016) (State of Rajasthan Vs. Pawan Kumar), whereby the accused-appellant has been convicted and sentenced as below:

3. Brief facts of the case are that the incident took place on 19.07.2015, when the accused-appellant Pawan, who resided in the neighboring house of the prosecutrix, who is said to be 15 years of age and at the time when she was alone at home, came with a mechanic for getting the cooler repaired and asked for a screw driver from the prosecutrix and when she went inside to bring the same, the accused made her smell something and she became unconscious, thereafter he committed rape upon her. While such act was taking place, mother of the prosecutrix returned home and the accused ran away.

3.1. On the basis of the aforementioned information, an FIR bearing No.49/2015 (Ex.P-2) dated 19.07.2015 was registered at the Police Station Mahila Thana, District Churu for the offence under Sections 376 of IPC and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act, 2012’) and the investigation commenced thereafter. After investigation, the police filed a charge-sheet in the concerned court for the offences under Sections 450 & 376 of IPC and Section 4 of the POCSO Act, 2012. The learned Trial Court framed charges against the accused-appellant under the aforementioned provisions of law; the said charges were read over to the accused-appellant, which he denied and claimed to stand due trial and the trial commenced accordingly.

3.2. During the course of trial, the prosecution produced witnesses (PW-1 to PW-8) and got exhibited the documents (Ex.P-1 to Ex.P-14), whereafter, the accused-appellant was examined under Section 313 Cr.P.C., in which he pleaded innocence and his false implication in the criminal case in question.

3.3. Thereafter, upon hearing the contentions of both the parties as well as considering the material and evidence placed on record, the learned Trial Court, convicted and sentenced the accused-appellant, as above, vide the impugned judgment of conviction and order of sentence dated 09.01.2019 against which the present appeal has been preferred by the accused-appellant.

4. Mr. Hastimal Saraswat, learned counsel for the accused-appellant submits that neither was there any kind of brutality, nor was there any kind of force which had been used by the accused-appellant.

4.1. Learned counsel submits that the minimum imprisonment for the offence under Section 3 of the POCSO Act, 2012, as provided under Section 4 of the POCSO Act, 2012 (prior to the amendment of the year 2019) is not less than s