Brief Facts
- The case of the prosecution is that the complainant XYZ lodged an F.I.R. against the appellant-accused stating therein that on 22.03.2016, at about 05:00 hours in the evening, Accused came to Complainant’s house and took his son aged about 10 years in the temple. There appellant gave Rs.20 to complainant’s son, i.e. the victim and said to suck his penis. Appellant 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.
- The respondent-accused was prosecuted for the offences punishable under Sections 377 and 506 of the IPC and Section 5 read with Section 6 of the POCSO Act for committing sexual assault on a victim below 12 years of age. The respondent was convicted for all three offences by the Ld. Additional Sessions Judge, Jhansi. The respondent-accused challenged the said order before the High Court of Judicature at Allahabad. 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. Hence, the present appeal by the State.
Issues
Whether the respondent is guilty of an offence of aggravated penetrative sexual assault punishable under section 6 or penetrative sexual assault punishable under section 4?
Held
- The Apex Court restored the judgment of the Trial Court by holding the accused guilty of aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act.
- 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.
- 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, 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. 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.
Relevant Para No.
9, 12