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/-. 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.
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 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. 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.
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. 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’.
Also Read: https://newslaw.in/supreme-court/extension-of-benefit-of-doubt-in-criminal-convictions/
Clause (m) of Section 5 reads thus: “5.Aggravated Penetrative Sexual Assault………………………………………………………………………………………….. —
Whoever, 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 assault. 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. The Courts are powerless to do that unless there is a specific statutory provision enabling the Court to impose a lesser sentence. The impugned 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 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.
Also Read: https://newslaw.in/supreme-court/vicarious-liability-under-section-34-of-ipc/
On failure of the respondent to surrender within one month from today, the Special Court shall forthwith issue a non-bailable 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.
Case Title: STATE OF U.P. Vs. SONU KUSHWAHA (2023 INSC 603)
Case Number: Crl.A. No.-001633-001633 / 2023
