STATE OF U.P versus SONU KUSHWAHA
[2023] 10 S.C.R. 993, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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[2023] 10 S.C.R. 993 : 2023 INSC 603
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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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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 restore the judgment of the trial court. The
impugned judgment and order passed by the High Court is
quashed and set aside and the judgment and order passed by the
Special Judge POCSO Act is restored. The respondent would
undergo rigorous imprisonment for ten years for the offence
punishable under Section 6 of the POCSO Act and pay a fine of
Rs.5,000/-. [Paras 12 and 13][1000-A-C; D-E]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1633 of 2023.
From the Judgment and Order dated 18.11.2021 of the High Court
of Judicature at Allahabad in CRLA No. 5415 of 2018.
Krishnanand Pandeya, Harah Pratap Shahi, Advs. for the
Appellant.
Satish Pandey, Abdul Qadir, Akbar Ali, Advs. for the Respondent.
The Judgment of the Court was delivered by
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The only question involved in this appeal is whether the
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 Section 6 of the POCSO Act.
The learned 8th Additional Sessions Judge, Jhansi who was the Special
Judge under the 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
STATE OF U.P. v. SONU KUSHWAHA
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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:
“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. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..”
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This finding has not been assailed by the respondent-accused 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 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 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)
.. .. .. .. .. .. .. .. .. .. .. ..
STATE OF U.P. v. SONU KUSHWAHA
[ABHAY S. OKA, J.]
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(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)
.. .. .. .. .. .. .. .. .. .. .. ..
(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”
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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 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. From 16th 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 place prior to 16th 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
STATE OF U.P. v. SONU KUSHWAHA
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lesser 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 victim-child will 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,
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 judgment
and order dated 18th 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 24th August 2018 passed
by the learned 8th 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, 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
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. A copy
of this judgment shall be immediately forwarded to the Special Court.
Nidhi Jain
Appeal allowed.
(Assisted by : Varun Dhond, LCRA)