Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1633 OF 2023
State of U.P. … Appellant
versus
Sonu Kushwaha … Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
The only question involved in this appeal is whether the
1.
respondent is guilty of an offence of aggravated penetrative
sexual assault punishable under Section 6 of the Protection of
Children from Sexual Offences Act, 2012 (for short, ‘the
POCSO Act’).
2. The respondent–accused was prosecuted for the
offences punishable under Sections 377 and 506 of the Indian
Penal Code, 1860 (for short, ‘IPC’) and Section 5 read with
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.07.05
16:37:53 IST
Reason:
th
Section 6 of the POCSO Act. The learned 8 Additional
Sessions Judge, Jhansi who was the Special Judge under the
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POCSO Act convicted the respondent for all three offences.
The respondent was sentenced to undergo rigorous
imprisonment for ten years for the offence punishable under
Section 6 of the POCSO Act and was directed to pay a fine of
Rs.5,000/. The respondent was sentenced to undergo
rigorous imprisonment for seven years for the offence
punishable under Section 377 of IPC. For the offence
punishable under Section 506 of IPC, he was sentenced to
undergo rigorous imprisonment for one year. For the last two
offences, a fine was also imposed.
3. The respondent preferred Criminal Appeal No.5415 of
2018 before the High Court of Judicature at Allahabad. By
the impugned judgment, the High Court held that the
respondent was guilty of the offence of penetrative sexual
assault punishable under Section 4 of the POCSO Act and not
the offence of aggravated penetrative sexual assault
punishable under Section 6 of the POCSO Act. Therefore, his
substantive sentence for the offence punishable under the
POCSO Act was brought down to imprisonment for seven
years with a fine of Rs.5,000/. Only to this extent, the
appeal was allowed.
4. It is not disputed that the age of the victim was less
than twelve years at the time of the commission of the offence.
The facts of the case have been summarised by the High
Court in paragraph 3 of the impugned judgment, which reads
thus:
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“ 3. Tersely put, the case of the
prosecution is that the complainant XYZ
lodged an F.I.R. against the appellant
Sonu Kushwaha on 26.03.2016 at
Chirgaon, District Jhansi stating therein
that on 22.03.2016, at about 05:00 hours
in the evening, appellant Sonu Kushwaha
came to complainant's house and took his
son aged about 10 years in the temple at
Hardaul. There appellant gave Rs.20 to
complainant's son i.e. victim and said to
suck his penis. Appellant Sonu Kushwaha
put his penis into the mouth of the victim.
Thereafter, victim came to the house
having that Rs.20. At this, complainant's
nephew Santosh asked to victim that from
where he got Rs.20, then victim told the
entire happening occurred with him.
Appellant also threatened the victim not to
disclose about the incident to anybody.”
In paragraph 16, the High Court has recorded findings based
on the evidence adduced by the prosecution. The relevant
portion of paragraph 16 reads thus:
“ 16. The proved facts of the case are that
the appellant put his penis into mouth of
the victim aged about 10 years and
discharged semen therein. .. .. .. .. .. .. .. ..
.. .. .. .. .. .. ..”
This finding has not been assailed by the respondentaccused
as he did not challenge the order of the High Court. After
recording the said finding, the High Court concluded that the
act committed by the respondent was of penetrative sexual
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assault which was punishable under Section 4 of the POCSO
Act.
SUBMISSIONS
5. The learned counsel appearing for the appellant–State of
Uttar Pradesh has invited our attention to the definition of
‘penetrative sexual assault’ under clause (a) of Section 3 of
the POCSO Act. The learned counsel also pointed out that
under clause (m) of Section 5, whoever commits penetrative
sexual assault on a child below twelve years, is guilty of
committing aggravated penetrative sexual assault. He would,
therefore, submit that the High Court has committed an error
by holding that Section 6, which applies to aggravated
penetrative sexual assault, was not applicable.
6. The learned counsel appearing for the respondent–
accused submitted that the respondent has already
undergone the sentence of seven years as modified by the
High Court. He submitted that now the respondent is
completely reformed. He also stated that the respondent has
moved ahead in life and in fact, recently he got married. He
would, therefore, submit that it would be unjust at this stage
to apply Section 6 of the POCSO Act and send the respondent
to jail to undergo further sentence.
OUR VIEW
7. There is no dispute about the correctness of the finding
recorded in paragraph 16 of the impugned judgment of the
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High Court, which we have quoted above. In this context, it is
necessary to note the definition of ‘penetrative sexual assault’
incorporated in Section 3 of the POCSO Act. Clause (a) of
Section 3 reads thus:
“3. Penetrative Sexual Assault. A
person is said to commit “penetrative
sexual assault” if –
(a) he penetrates his penis, to any extent,
into the vagina, mouth, urethra or
anus of a child or makes the child to
do so with him or any other person; or
(b) .. .. .. .. .. .. .. .. .. .. .. ..
(c) .. .. .. .. .. .. .. .. .. .. .. ..
(d) .. .. .. .. .. .. .. .. .. .. .. ..”
8. Section 2(a) of the POCSO Act provides that ‘aggravated
penetrative sexual assault’ has the same meaning as assigned
to it in Section 5. Therefore, we come to Section 5, which
defines ‘aggravated penetrative sexual assault’. Clause (m) of
Section 5 reads thus:
“5.Aggravated Penetrative Sexual
Assault. –
(a) .. .. .. .. .. .. .. .. .. .. .. ..
(b) .. .. .. .. .. .. .. .. .. .. .. ..
(c) .. .. .. .. .. .. .. .. .. .. .. ..
(d) .. .. .. .. .. .. .. .. .. .. .. ..
(e) .. .. .. .. .. .. .. .. .. .. .. ..
(f) .. .. .. .. .. .. .. .. .. .. .. ..
(g) .. .. .. .. .. .. .. .. .. .. .. ..
(h) .. .. .. .. .. .. .. .. .. .. .. ..
(i) .. .. .. .. .. .. .. .. .. .. .. ..
(j) .. .. .. .. .. .. .. .. .. .. .. ..
(k) .. .. .. .. .. .. .. .. .. .. .. ..
(l) .. .. .. .. .. .. .. .. .. .. .. ..
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(m) whoever commits penetrative sexual
assault on a child below
twelve years; or
(n) .. .. .. .. .. .. .. .. .. .. .. ..
(o) .. .. .. .. .. .. .. .. .. .. .. ..
(p) .. .. .. .. .. .. .. .. .. .. .. ..
(q) .. .. .. .. .. .. .. .. .. .. .. ..
(r) .. .. .. .. .. .. .. .. .. .. .. ..
(s) .. .. .. .. .. .. .. .. .. .. .. ..
(t) .. .. .. .. .. .. .. .. .. .. .. ..
(u) .. .. .. .. .. .. .. .. .. .. .. .., is said to
commit aggravated penetrative sexual
assault”
9. Considering the finding recorded in paragraph 16 of the
impugned judgment, obviously in this case, the respondent
has committed an offence of aggravated penetrative sexual
assault as he has committed penetrative sexual assault on a
child below twelve years. Clause (m) of Section 5 is attracted
in this case.
10. Section 6, as applicable before its substitution on 16th
August 2019, read thus:
“ 6. Punishment for aggravated
Whoever,
penetrative sexual assault.—
commits aggravated penetrative sexual
assault, 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 and shall
also be liable to fine.”
On the date of the commission of the offence, rigorous
imprisonment for ten years was the minimum sentence
prescribed for the offence of aggravated penetrative sexual
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th
assault. From 16 August 2019, the minimum sentence has
been enhanced to twenty years. However, the amended
provision will not apply to this case as the incident has taken
th
place prior to 16 August 2019.
11. Surprisingly, the High Court has observed that Section
5 was not applicable, and the offence committed by the
respondent falls under the category of a lesser offence of
penetrative sexual assault, which is punishable under Section
4 of the POCSO Act. Thus, the High Court committed an
obvious error by holding that the act committed by the
respondent was not an aggravated penetrative sexual assault.
In fact, the Special Court was right in punishing the
respondent under Section 6 and sentencing him to undergo
rigorous imprisonment for ten years with a fine of Rs.5,000/.
12. The POCSO Act was enacted to provide more stringent
punishments for the offences of child abuse of various kinds
and that is why minimum punishments have been prescribed
in Sections 4, 6, 8 and 10 of the POCSO Act for various
categories of sexual assaults on children. Hence, Section 6,
on its plain language, leaves no discretion to the Court and
there is no option but to impose the minimum sentence as
done by the Trial Court. When a penal provision uses the
phraseology “shall not be less than….”, the Courts cannot do
offence to the Section and impose a lesser sentence. The
Courts are powerless to do that unless there is a specific
statutory provision enabling the Court to impose a lesser
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sentence. However, we find no such provision in the POCSO
Act. Therefore, notwithstanding the fact that the respondent
may have moved ahead in life after undergoing the sentence
as modified by the High Court, there is no question of
showing any leniency to him. Apart from the fact that the law
provides for a minimum sentence, the crime committed by the
respondent is very gruesome which calls for very stringent
punishment. The impact of the obnoxious act on the mind of
the victimchild will be lifelong. The impact is bound to
adversely affect the healthy growth of the victim. There is no
dispute that the age of the victim was less than twelve years
at the time of the incident. Therefore, we have no option but
to set aside the impugned judgment of the High Court and
restore the judgment of the Trial Court.
13. Accordingly, the appeal is allowed. The impugned
th
judgment and order dated 18 November 2021 passed by the
High Court of Judicature at Allahabad in Criminal Appeal
No.5415 of 2018 is quashed and set aside and the judgment
th th
and order dated 24 August 2018 passed by the learned 8
Additional Sessions Judge, Special Judge POCSO Act, Jhansi
in Special Session Trial No.134 of 2016 is restored.
Accordingly, Criminal Appeal No.5415 of 2018 filed before the
High Court stands dismissed. The respondent shall undergo
rigorous imprisonment for ten years for the offence
punishable under Section 6 of the POCSO Act and shall pay a
fine of Rs.5,000/. We direct the respondent to surrender
before the learned Special Judge under the POCSO Act,
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Jhansi within a maximum period of one month. On his
surrender, the Special Court shall send the respondent to
prison for undergoing the remaining sentence for the offence
punishable under Section 6 of the POCSO Act. On failure of
the respondent to surrender within one month from today,
the Special Court shall forthwith issue a nonbailable warrant
against the respondent and ensure that the respondent is
committed to prison for undergoing the remaining sentence
for the offence punishable under Section 6 of the POCSO Act.
A copy of this judgment shall be immediately forwarded to the
Special Court.
…………………….J.
(Abhay S. Oka)
…………………….J.
(Rajesh Bindal)
New Delhi;
July 5, 2023.
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