State of UP vs Sonu Khushawa
Date of Order:
5th July 2023
Justice Abhay and Rajesh Bindal
Petitioner: State of UP
Defendant: Sonu Khushawa
- The sole issue on appeal is whether the respondent committed an act of aggravated penetrative sexual assault punishable by Section 6 of the Protection of Children from Sexual Offences Act of 2012, which is the only statute in consideration.
- The respondent-accused was charged with crimes covered by Sections 377 and 506 of the Indian Penal Code, 1860 (often referred to as the "IPC") and Sections 5 and 6 of the POCSO Act.
- The defendant was found guilty of all three charges by the learned 8th Additional Sessions Judge, Jhansi, who was also the Special Judge under the POCSO Act. The respondent was ordered to pay a fine of Rs. 5,000 and was sentenced to 10 years of hard labour for the violation of Section 6 of the POCSO Act.
- For the violation of Section 377 of the IPC, the respondent was given a seven-year sentence of solitary confinement. He received a one-year term of rigorous imprisonment for the offence covered by Section 506 of the IPC. A fine was also levied for the final two infractions.
- Whether the acussed is punishable under the POCSO Act?
- In Criminal Appeal No. 5415 of 2018, the respondent filed a petition with the High Court of Judicature in Allahabad. By issuing the contested decision, the High Court determined that the respondent had committed a penetrative sexual assault offence, punishable under Section 4 of the POCSO Act, rather than an aggravated penetrative sexual assault offence, punished under Section 6 of the POCSO Act. As a result, his substantive sentence for the offence covered by the POCSO Act was reduced to seven years in prison and a fine of Rs. 5,000. Only in this respect was the appeal granted.
- There is no question that the victim was younger than twelve years old when the crime was committed. The High Court stated the relevant facts in paragraph 3 of the contested decision, which is as follows: - Simply put, the prosecution's case is that complainant XYZ filed an F.I.R. against appellant Sonu Kushwaha on March 26, 2016, in Chirgaon, District Jhansi, alleging that on March 22, 2016, at around 5:00 p.m., appellant Sonu Kushwaha arrived at complainant's home and took his son, who was about 10 years old, and took him to the temple at Hardaul. There, the appellant offered the victim—the son of the complainant—Rs. 20 and instructed him to suck his penis. Sonu Kushwaha, the appellant, inserted his penis into the victim's mouth. The victim then arrived at the residence with those 20 rupees. When the victim was asked where he got the 20 rupees at this point by the complainant's nephew Santosh, the victim explained that the entire incident happened to him. The victim was additionally intimidated by the appellant not to tell anyone about the occurrence.
- According to the prosecution's evidence, the High Court's findings in paragraph 16 are supported by that evidence. The pertinent sentence of paragraph 16 is as follows:- The case's proven facts show that the appellant inserted his penis into the victim's mouth, who was about 10 years old, and discharged semen therein.
- The respondent-accused did not contest the High Court's order, hence he did not appeal this finding. The High Court came to the conclusion upon the recording of the aforementioned finding that the respondent had engaged in penetrative sexual assault, a crime punishable by Section 4 of the POCSO Act.
- The knowledgeable attorney representing the appellant-State of Uttar Pradesh has drawn our attention to clause (a) of Section 3 of the POCSO Act's definition of "penetrative sexual assault." The knowledgeable attorney further emphasised that, according to Section 5's clause (m), penetrating sexual assault against a minor under the age of twelve constitutes aggravated penetrative sexual In light of this, he would contend that the High Court erred in ruling that Section 6, which deals with aggravated penetrative sexual assault, was not relevant.
- The experienced attorney for the accused respondent claimed that the accused had already served the seven-year sentence, as reduced by the High Court. He claimed that the respondent has fully changed for the better presently. Additionally, he said that the respondent had advanced in life and had lately gotten married. Therefore, he would argue that it would be unfair to use Section 6 of the POCSO Act at this point and send the respondent to jail to serve out more time.
- Section 6, as it was in effect prior to its replacement on August 16, 2019, was as follows: - Aggravated penetrative sexual assault punishment Anyone who engages in serious penetrative sexual assault faces a sentence of harsh imprisonment for a time that must not be less than 10 years but may run as long as life in prison, as well as a fine.
- The minimum punishment for the crime of aggravated penetrative sexual assault on the day of the offence was ten years of rigorous imprisonment. The minimum punishment has been raised to twenty years as of August 16, 2019. However, because the incident occurred before August 16, 2019, the modified provision will not apply in this instance.
- Unexpectedly, the High Court found that Section 5 was inapplicable and that the respondent's offence fell under the category of penetrative sexual assault, a lower offence punished under Section 4 of the POCSO Act. As a result, the High Court made a clear mistake by concluding that the respondent's act did not constitute an aggravating penetrative sexual assault. The Special Court was correct to punish the respondent under Section 6 and sentence him to 10 years of hard labour in jail and a fine of Rs. 5,000.
- Because the POCSO Act was enacted to impose more severe penalties for acts involving various forms of child abuse, its Sections 4, 6, 8, and 10 provide minimum sentences for specific types of child sexual assault.
- Because of this, Section 6 leaves no room for interpretation, and the Trial Court's imposition of the minimum punishment is the only choice.
- The courts cannot violate the section and impose a lighter penalty where a penal clause employs the phraseology "shall not be less than." Unless there is a particular statute giving the court the authority to impose a reduced sentence, the courts lack the authority to do that.
- The POCSO Act does not, however, contain any such clause. Therefore, there is no question of extending any leniency to the respondent, even though he may have improved after receiving the sentence as modified by the High Court. In addition to the fact that the law specifies a minimum penalty, the respondent's crime was particularly heinous, necessitating harsh punishment.
- The victim-child's mentality will be affected by the offensive act for the rest of their lives. The victim's ability to grow normally will undoubtedly be significantly impacted by the impact. There is no question that the victim was under the age of twelve when the assault occurred.
Therefore, the appeal is granted. The contested judgement and order dated November 18, 2021, issued by the High Court of Judicature in Allahabad in Criminal Appeal No. 5415 of 2018, is reversed and vacated, and the judgement and order dated August 24, 2018, issued in Special Session Trial No. 134 of 2016, by the learned 8th Additional Sessions Judge, Special Judge POCSO Act, Jhansi, is reinstated. In light of this, Criminal Appeal No. 5415 of 2018 dismissed before the High Court. The respondent will serve a strict ten-year prison sentence for the violation of Section 6 of the POCSO Act and will also be required to pay a fine of Rs. 5,000. We order the respondent to appear in person before the Jhansi Special Judge under the POCSO Act no later than one month from now. The Special Court will commit the respondent to prison upon his surrender so that he can serve the remaining time in prison for the offence covered by Section 6 of the POCSO Act. If the respondent does not appear within a month of this date, the Special Court will immediately issue a non-bailable warrant against them and make sure they are committed to jail to serve out the remainder of their sentence for the offence listed in Section 6 of the POCSO Act. This judgment's copy will be sent right away to the Special Court.