Supreme Court Upholds Aggravated Penetrative Sexual Assault Conviction Under POCSO Act: State of UP vs. Sonu Kushwaha (2023)

Introduction

Date of the Judgment: July 5, 2023
Citation: Criminal Appeal No. 1633 of 2023
Judges: Abhay S. Oka, J., Rajesh Bindal, J.
Can a High Court reduce the sentence for aggravated penetrative sexual assault when the law mandates a minimum sentence? The Supreme Court of India recently addressed this question, emphasizing the strict application of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) when dealing with offenses against children. This case revolves around a conviction for aggravated penetrative sexual assault, where the High Court had reduced the sentence, leading to the Supreme Court’s intervention. The bench comprised Justices Abhay S. Oka and Rajesh Bindal, with the judgment authored by Justice Abhay S. Oka.

Case Background

The case originated from an incident on March 22, 2016, when Sonu Kushwaha (the respondent) took a 10-year-old boy to a temple. There, he gave the boy ₹20 and committed a penetrative sexual assault by putting his penis into the boy’s mouth. The victim disclosed the incident to his family, leading to the filing of a First Information Report (FIR) on March 26, 2016. The respondent was initially convicted by the Special Court under the POCSO Act and the Indian Penal Code, 1860 (IPC). The High Court of Judicature at Allahabad, however, modified the conviction, reducing the sentence under the POCSO Act. The State of Uttar Pradesh, aggrieved by this modification, appealed to the Supreme Court.

Timeline

Course of Proceedings

The 8th Additional Sessions Judge, Jhansi, who was also the Special Judge under the POCSO Act, convicted Sonu Kushwaha for offenses under Section 377 and 506 of the IPC, and Section 5 read with Section 6 of the POCSO Act. The respondent was sentenced to ten years rigorous imprisonment for the offense under Section 6 of the POCSO Act. On appeal, the High Court of Judicature at Allahabad held that the respondent was guilty of penetrative sexual assault punishable under Section 4 of the POCSO Act, and not aggravated penetrative sexual assault under Section 6. Consequently, the High Court reduced the sentence for the POCSO Act offense to seven years. The State of Uttar Pradesh then appealed to the Supreme Court, challenging the High Court’s modification of the sentence.

Legal Framework

The Supreme Court examined the following key provisions of the POCSO Act:
✓ **Section 3(a):** Defines “penetrative sexual assault” as the penetration of the penis, to any extent, into the vagina, mouth, urethra, or anus of a child, or making the child do so with him or any other person.
✓ **Section 5(m):** Defines “aggravated penetrative sexual assault” as the commission of penetrative sexual assault on a child below twelve years of age.
✓ **Section 6:** Prescribes the punishment for aggravated penetrative sexual assault, which, at the time of the offense, was a minimum of ten years rigorous imprisonment, extendable to life imprisonment, and a fine.
The Court noted that Section 2(a) of the POCSO Act states that ‘aggravated penetrative sexual assault’ has the same meaning as assigned to it in Section 5.

The Court emphasized that the POCSO Act was enacted to provide stringent punishments for child abuse, and the minimum punishments prescribed in Sections 4, 6, 8, and 10 for various categories of sexual assaults on children leave no discretion to the Court to impose a lesser sentence.

Arguments

Appellant (State of Uttar Pradesh):

• The counsel for the State argued that the High Court erred in not applying Section 6 of the POCSO Act, which deals with aggravated penetrative sexual assault. They pointed out that the victim was below twelve years of age, and the act committed by the respondent fell squarely within the definition of aggravated penetrative sexual assault under Section 5(m) of the POCSO Act. The counsel emphasized that as per the definition of ‘penetrative sexual assault’ under clause (a) of Section 3 of the POCSO Act, the act committed by the respondent falls under the ambit of the said definition.

Respondent (Sonu Kushwaha):

• The counsel for the respondent submitted that the respondent had already served the seven-year sentence modified by the High Court. They argued that the respondent was now reformed, had moved on in life, and had recently married. They pleaded that it would be unjust to apply Section 6 of the POCSO Act at this stage and send the respondent back to jail to serve a further sentence.

Issues Framed by the Supreme Court

The sole issue before the Supreme Court was:

1. Whether the respondent is guilty of an offence of aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following legal provisions:
✓ **Section 3(a) of the POCSO Act:** Definition of penetrative sexual assault.
✓ **Section 5(m) of the POCSO Act:** Definition of aggravated penetrative sexual assault.
✓ **Section 6 of the POCSO Act:** Punishment for aggravated penetrative sexual assault.
✓ **Section 2(a) of the POCSO Act:** Meaning of ‘aggravated penetrative sexual assault’

Judgment

How each authority was viewed by the Court?

✓ The Court relied on **Section 3(a) of the POCSO Act** to establish that the act committed by the respondent constituted penetrative sexual assault.

✓ The Court used **Section 5(m) of the POCSO Act** to determine that since the victim was below twelve years of age, the offense was aggravated penetrative sexual assault.

✓ The Court applied **Section 6 of the POCSO Act** to conclude that the minimum sentence of ten years rigorous imprisonment was mandatory.

✓ The Court used **Section 2(a) of the POCSO Act** to determine that ‘aggravated penetrative sexual assault’ has the same meaning as assigned to it in Section 5.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily driven by the strict interpretation of the POCSO Act and the need to protect children from sexual abuse. The Court emphasized the mandatory nature of the minimum sentence prescribed under Section 6 of the POCSO Act. The Court was also influenced by the gruesome nature of the crime and its potential lifelong impact on the victim.

The Supreme Court’s decision was heavily influenced by the legal framework, particularly the mandatory minimum sentence prescribed by the POCSO Act. While the factual aspects of the case were considered, the legal requirements took precedence in the Court’s reasoning.

Logical Reasoning

Analysis of the Judgment

The Supreme Court meticulously analyzed the definitions of “penetrative sexual assault” and “aggravated penetrative sexual assault” under the POCSO Act. The Court noted that the High Court had incorrectly applied Section 4 instead of Section 6 of the POCSO Act. The Supreme Court emphasized that when a penal provision uses the phrase “shall not be less than,” the courts cannot impose a lesser sentence unless there is a specific statutory provision allowing it, which is absent in the POCSO Act.

The Court stated, “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.”

The Court further observed, “The impact of the obnoxious act on the mind of the victim-child will be life-long. The impact is bound to adversely affect the healthy growth of the victim.”

The Supreme Court also noted that, “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.”

The Supreme Court did not find any scope for leniency, despite the respondent’s claim of having moved on in life. The Court emphasized the need to uphold the law and protect children from such heinous crimes. The decision underscores the strict interpretation and application of the POCSO Act to ensure that offenders receive the mandated punishment.

Key Takeaways

• The Supreme Court has reinforced the strict application of the POCSO Act, particularly concerning minimum sentences for aggravated penetrative sexual assault.
• High Courts cannot reduce the sentence for aggravated penetrative sexual assault when the victim is below twelve years of age, as the minimum sentence prescribed under Section 6 is mandatory.
• The judgment highlights the importance of protecting children from sexual abuse and ensuring that offenders receive stringent punishment.
• The case clarifies the legal position regarding the application of Section 6 of the POCSO Act in cases where the victim is a child below twelve years.

Directions

The Supreme Court directed the respondent to surrender before the Special Judge under the POCSO Act, Jhansi, within one month. Upon surrender, the Special Court was directed to send the respondent to prison to serve the remaining sentence. In case of failure to surrender within the stipulated time, the Special Court was directed to issue a non-bailable warrant against the respondent.

Specific Amendments Analysis

The Court noted that Section 6 of the POCSO Act was amended on August 16, 2019, to enhance the minimum sentence to twenty years. However, the amended provision was not applicable to this case as the incident occurred before this date.

Development of Law

The ratio decidendi of this case is that the minimum sentence prescribed under Section 6 of the POCSO Act for aggravated penetrative sexual assault is mandatory when the victim is below twelve years of age. This judgment reinforces the stringent nature of the POCSO Act and its commitment to protecting children. There is no change in the previous position of law, rather the Supreme Court has clarified that the minimum sentence cannot be reduced by the High Court.

Conclusion

The Supreme Court allowed the appeal, setting aside the High Court’s judgment and restoring the Trial Court’s conviction and sentence of ten years rigorous imprisonment for the offense under Section 6 of the POCSO Act. The decision emphasizes the strict application of the POCSO Act, particularly the mandatory minimum sentence for aggravated penetrative sexual assault when the victim is a child below twelve years of age.