State of U.P. (Appellant) Vs. Sonu Kushwaha (Respondent)

CRIMINAL APPEAL NO. 1633 OF 2023
(2JB, Abhay S. Oka and Rajesh Bindal JJ., delivered by Abhay S. Oka J.)

Facts: The present appeal has been preferred by the state against the High court’s judgment whereby it concluded that the act committed by the respondent was of penetrative sexual assault which was punishable under Section 4 of the POCSO Act.

Issue: 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?

Arguments on behalf of counsel for appellant:

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.

Arguments on behalf of counsel for respondent:

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.

Held: The court allowed the present appeal and set aside high court’s judgment while restoring the judgment passed by Additional Sessions Judge, Special Judge POCSO Act, Jhansi. The court thereby, directed the respondent to 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/­. The court further observed 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.”