We see with a great sense of satisfaction how most commendably while taking the most righteous, remarkable, rational and robust stand, none other than the Supreme Court itself while demonstrating absolute zero tolerance for crimes against children and setting aside the Allahabad High Court judgment minced just no words absolutely to hold in no uncertain terms in a learned, laudable, landmark and latest judgment titled State of UP vs Sonu Kushwaha in Criminal Appeal No. 1633 of 2023 and cited in 2023 LiveLaw (SC) 502 that was pronounced as recently as on July 5, 2023 that the Courts cannot impose sentence lesser than the minimum punishments prescribed in POCSO Act. The Apex Court held that the POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds. Why should there be any “discretion bomb” at all that should be ever vested with the Judges in such heinous cases of crime against children? This alone explains why the Apex Court has made the legal position on crimes against children absolutely clear in this leading case and so the Courts are powerless on this and have to impose the minimum punishment which is mandatory in such most reprehensible cases of crime against children. Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Abhay S Oka for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Rajesh Bindal sets the ball in motion by first and foremost stipulating in para 1 that, “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’).”
While dwelling on the factual aspects, the Bench puts forth in para 2 that, “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 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.”
As it turned out, the Bench then enunciates in para 3 that, “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.”
To put things in perspective, the Bench envisages in para 4 that, “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 summarized 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 the mouth of the victim aged about 10 years and discharged semen therein.
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.”
Tersely put, the Bench states in para 7 that, “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.” It is then stated that 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) … … … …””
Further, the Bench specifies in para 8 that, “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”.”
Do note, the Bench notes in para 9 that, “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.”
Be it also noted that the Bench notes in para 10 that, “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.”
While taking potshots at the findings of the Allahabad High Court judgment, the Apex Court minced just no words to hold in para 11 that, “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/.”
Most notably, most forthrightly and most commendably, the Bench minces just no words to mandate in para 12 holding 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. 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. Courts are powerless to do that unless there is a specific statutory provision enabling the Court to impose a 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.”
Finally, the Bench concludes by holding in para 13 that, “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 offences 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.”
In conclusion, I am just falling totally short of words to describe how most correctly, commendably and courageously the Apex Court has picked up the gauntlet and in this brilliant, brief and bold judgment minced just no words to hold decisively that there is no discretion of any kind to reduce somehow or anyhow the minimum sentence for aggravated penetrative sexual assault as prescribed under the POCSO Act. There can be no gainsaying that it is high time and our law makers must definitely step in and most promptly increase the amount of fine in such heinous crimes also to at least fifty thousand if not more and five thousand is just nothing and makes a mockery of the victim. Of course, there definitely has to be complete zero tolerance for such most despicable, derisive and dastardly crimes and the Apex Court has certainly proved it right by delivering this most decisive, dedicated and determined judgment where there can be just no room for any tolerance for such most heinous crimes against innocent children! No denying it! Sanjeev Sirohi
