IMPORTANT POINT
Penetrative sexual assault on minor child – There is no option before Court but to impose minimum sentence on accused.

JUDGMENT :

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. 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’).

2. 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.

3. 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.

4. 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 summarised 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 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.

SUBMISSIONS

5. 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.

6. The learned counsel