STATE OF U.P versus SONU KUSHWAHA

Citation: [2023] 10 S.C.R. 993 · Decided: 05-07-2023 · Supreme Court of India · Bench: ABHAY S. OKA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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[2023] 10 S.C.R. 993 : 2023 INSC 603
993
STATE OF U.P.
v.
SONU KUSHWAHA
(Criminal Appeal No. 1633 of 2023)
JULY 05, 2023
[ABHAY S. OKA AND RAJESH BINDAL, JJ.]
Protection of Children from Sexual Offences Act, 2012: ss. 6,
5 clause (m) – Aggravated penetrative sexual assault – Punishment
for – Prosecution case that accused had put his penis into mouth of
the victim aged about 10 years and discharged semen – Conviction
u/s. 377 and 506 IPC and s. 5 r/w s. 6 of the POCSO Act, and
sentenced accordingly – However, the High Court held that the act
committed by the accused was of penetrative sexual assault
punishable u/s. 4 and reduced the sentence – Correctness of – Held:
Accused committed an offence of aggravated penetrative sexual
assault as he has committed penetrative sexual assault on a child
below twelve years – Clause (m) of s. 5, whoever commits penetrative
sexual assault on a child below twelve years, is guilty of committing
aggravated penetrative sexual assault, is attracted – Furthermore,
though the law provides for a minimum sentence, the crime committed
by the accused is very gruesome which calls for very stringent
punishment – Thus, the impugned judgment of the High Court is set
aside and that of the trial court is restored.
Scope and ambit of – Held: POCSO Act was enacted to provide
more stringent punishments for the offences of child abuse of various
kinds – Hence, minimum punishments have been prescribed in ss.
4, 6, 8 and 10 for various categories of sexual assaults on children
– s. 6 on its plain language, leaves no discretion to the Court and
there is no option but to impose the minimum sentence – ss. 4, 6, 8
and 10.
Allowing the appeal, the Court
HELD: 1.1 The respondent 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 of the Protection of Children from Sexual Offences
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SUPREME COURT REPORTS
[2023] 10 S.C.R.
Act, 2012 is attracted in the instant case. 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. From 16th August 2019,
the minimum sentence has been enhanced to twenty years.
However, the amended provision would not apply to this case as
the incident has taken place prior to 16th August 2019. [Paras 9
and 10][999-A-D]
1.2 The High Court held 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 u/s. 4 of the POCSO Act. Thus, the High Court
committed an 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 u/
s.6 and sentencing him to undergo rigorous imprisonment for
ten years with a fine of Rs.5,000/. [Para 11][999-E-F]
1.3 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 sentence. However, there is no such provision in the
POCSO Act. Thus, 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 victim-child will
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be life-long. 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,
there is no option but to set aside the impugned judgment of the
High Court and resto

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