Imposition of less than minimum prescribed thereunder (of 10 yrs’ RI at the relevant time) is impermissible, even when the accused had moved ahead in life. it was noted by the High Court that the age of the child, rather victim is 10 years and on the contrary, Section 5 (m) of the Act itself mentions that “penetrative sexual assault committed against a child of age below 12 years will amount to Aggravated Penetrative Sexual Assault”, the judges committed a gross mistake on their part by misinterpreting Section 5 (m) with Section 3 and naming the offense to be punishable under Section 4. Even when the Special Court rightly pointed out the age of the victim and placed the perpetrator under Section 5 and punishable under Section 6, the court out-rightly ignored this fact and presided with a notion in the wrong direction.

Held, 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, 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 life­long

Case Comment:

  • A case was registered against Sonu Kushwaha under Section 377, 506 IPC and Section 3 and 4 of POCSO Act for performing oral sex with a minor boy when he was 10 years old (2016)(The judgment was based on POCSO Act, 2012)
  • The National Commission for Protection of Child Rights (NCPCR) had urged the Uttar Pradesh chief secretary to file an appeal against an Allahabad High Court judgement.
  • NCPCR is mandated under sections 109 of the Juvenile Justice Act, 2015 and 44 of POCSO Act, 2012 to monitor the implementation of the Acts.
  • It has observed that the high court verdict of commuting the sentence of the accused from 10 years to 7 years and the offence from aggravated penetrative sexual assault to penetrative sexual assault seems to be not as per the letter and spirit of the POCSO Act, 2012.
  • The commutation of sentence is observed by the commission to be prejudicial to the justice delivered to the victim in this case.

 

[State of U.P. v. Sonu Kushwaha, (2023) 7 SCC 475]

 

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