STATE OF U.PversusSONU KUSHWAHA

             [2023] 10 S.C.R. 993 : 2023 INSC 603                       993


                          STATE OF U.P.                                 A
                                 v.
                       SONU KUSHWAHA
                 (Criminal Appeal No. 1633 of 2023)
                           JULY 05, 2023                                B
        [ABHAY S. OKA AND RAJESH BINDAL, JJ.]
       Protection of Children from Sexual Offences Act, 2012: ss. 6,
5 clause (m) – Aggravated penetrative sexual assault – Punishment
for – Prosecution case that accused had put his penis into mouth of
                                                                        C
the victim aged about 10 years and discharged semen – Conviction
u/s. 377 and 506 IPC and s. 5 r/w s. 6 of the POCSO Act, and
sentenced accordingly – However, the High Court held that the act
committed by the accused was of penetrative sexual assault
punishable u/s. 4 and reduced the sentence – Correctness of – Held:
Accused committed an offence of aggravated penetrative sexual           D
assault as he has committed penetrative sexual assault on a child
below twelve years – Clause (m) of s. 5, whoever commits penetrative
sexual assault on a child below twelve years, is guilty of committing
aggravated penetrative sexual assault, is attracted – Furthermore,
though the law provides for a minimum sentence, the crime committed
                                                                        E
by the accused is very gruesome which calls for very stringent
punishment – Thus, the impugned judgment of the High Court is set
aside and that of the trial court is restored.
       Scope and ambit of – Held: POCSO Act was enacted to provide
more stringent punishments for the offences of child abuse of various
                                                                        F
kinds – Hence, minimum punishments have been prescribed in ss.
4, 6, 8 and 10 for various categories of sexual assaults on children
– s. 6 on its plain language, leaves no discretion to the Court and
there is no option but to impose the minimum sentence – ss. 4, 6, 8
and 10.
      Allowing the appeal, the Court                                    G

      HELD: 1.1 The respondent 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 of the Protection of Children from Sexual Offences
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                                993
994            SUPREME COURT REPORTS                    [2023] 10 S.C.R.


A     Act, 2012 is attracted in the instant case. On the date of the
      commission of the offence, rigorous imprisonment for ten years
      was the minimum sentence prescribed for the offence of
      aggravated penetrative sexual assault. From 16th August 2019,
      the minimum sentence has been enhanced to twenty years.
      However, the amended provision would not apply to this case as
B
      the incident has taken place prior to 16th August 2019. [Paras 9
      and 10][999-A-D]
             1.2 The High Court held that Section 5 was not applicable,
      and the offence committed by the respondent falls under the
      category of a lesser offence of penetrative sexual assault, which
C
      is punishable u/s. 4 of the POCSO Act. Thus, the High Court
      committed an error by holding that the act committed by the
      respondent was not an aggravated penetrative sexual assault. In
      fact, the Special Court was right in punishing the respondent u/
      s.6 and sentencing him to undergo rigorous imprisonment for
D     ten years with a fine of Rs.5,000/. [Para 11][999-E-F]
            1.3 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
E     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
F     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, there is no such provision in the
      POCSO Act. Thus, 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
G     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

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               STATE OF U.P. v. SONU KUSHWAHA                                 995


be life-long. The impact is bound to adversely affect the healthy             A
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,
there is no option but to set aside the impugned judgment of the
High Court and restore the judgment of the trial court. The
impugned judgment and order passed by the High Court is
                                                                              B
quashed and set aside and the judgment and order passed by the
Special Judge POCSO Act is restored. The respondent would
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/-. [Paras 12 and 13][1000-A-C; D-E]
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                         C
No.1633 of 2023.
      From the Judgment and Order dated 18.11.2021 of the High Court
of Judicature at Allahabad in CRLA No. 5415 of 2018.
      Krishnanand Pandeya, Harah Pratap Shahi, Advs. for the                  D
Appellant.
      Satish Pandey, Abdul Qadir, Akbar Ali, Advs. for the Respondent.
      The Judgment of the Court was delivered by
      ABHAY S. OKA, J.
                                                                              E
      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’).                              F
       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              G
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

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996            SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A     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
B     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
C     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
D     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
E           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.
F           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
G     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. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..”
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               STATE OF U.P. v. SONU KUSHWAHA                                  997
                      [ABHAY S. OKA, J.]

       This finding has not been assailed by the respondent-accused as         A
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                                                              B
       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           C
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 appearing for the respondent–accused             D
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            E
sentence.
      OUR VIEW
       7. There is no dispute about the correctness of the finding recorded
in paragraph 16 of the impugned judgment of the High Court, which we           F
have quoted above. In this context, it is necessary to note the definition
of ‘penetrative sexual assault’ incorporated in Section 3 of the POCSO
Act. Clause (a) of Section 3 reads thus:
      “3. Penetrative Sexual Assault.- A person is said to commit
      “penetrative sexual assault” if –
                                                                               G
      (a)    he penetrates his penis, to any extent, into the vagina, mouth,
             urethra or anus of a child or makes the child to do so with
             him or any other person; or
      (b)    .. .. .. .. .. .. .. .. .. .. .. ..
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998               SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A           (c)     .. .. .. .. .. .. .. .. .. .. .. ..
            (d)     .. .. .. .. .. .. .. .. .. .. .. ..”
            8. Section 2(a) of the POCSO Act provides that ‘aggravated
      penetrative sexual assault’ has the same meaning as assigned to it in
      Section 5. Therefore, we come to Section 5, which defines ‘aggravated
B     penetrative sexual assault’. Clause (m) of Section 5 reads thus:
            “5.Aggravated Penetrative Sexual Assault. –
            (a)     .. .. .. .. .. .. .. .. .. .. .. ..
            (b)     .. .. .. .. .. .. .. .. .. .. .. ..
C           (c)     .. .. .. .. .. .. .. .. .. .. .. ..
            (d)     .. .. .. .. .. .. .. .. .. .. .. ..
            (e)     .. .. .. .. .. .. .. .. .. .. .. ..
            (f)     .. .. .. .. .. .. .. .. .. .. .. ..
D           (g)     .. .. .. .. .. .. .. .. .. .. .. ..
            (h)     .. .. .. .. .. .. .. .. .. .. .. ..
            (i)     .. .. .. .. .. .. .. .. .. .. .. ..
            (j)     .. .. .. .. .. .. .. .. .. .. .. ..
E           (k)     .. .. .. .. .. .. .. .. .. .. .. ..
            (l)     .. .. .. .. .. .. .. .. .. .. .. ..
            (m)     whoever commits penetrative sexual assault on a child
                    below twelve years; or
F           (n)     .. .. .. .. .. .. .. .. .. .. .. ..
            (o)     .. .. .. .. .. .. .. .. .. .. .. ..
            (p)     .. .. .. .. .. .. .. .. .. .. .. ..
            (q)     .. .. .. .. .. .. .. .. .. .. .. ..
G           (r)     .. .. .. .. .. .. .. .. .. .. .. ..
            (s)     .. .. .. .. .. .. .. .. .. .. .. ..
            (t)     .. .. .. .. .. .. .. .. .. .. .. ..
            (u)     .. .. .. .. .. .. .. .. .. .. .. .., is said to commit aggravated
H                   penetrative sexual assault”
               STATE OF U.P. v. SONU KUSHWAHA                                999
                      [ABHAY S. OKA, J.]

       9. Considering the finding recorded in paragraph 16 of the impugned   A
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.
      10. Section 6, as applicable before its substitution on 16th August    B
2019, read thus:
      “6. Punishment for aggravated penetrative sexual assault.—
      Whoever, commits aggravated penetrative sexual assault, shall
      be punished with rigorous imprisonment for a term which shall
      not be less than ten years but which may extend to imprisonment        C
      for life and shall also be liable to fine.”
       On the date of the commission of the offence, rigorous
imprisonment for ten years was the minimum sentence prescribed for
the offence of aggravated penetrative sexual assault. From 16th August
2019, the minimum sentence has been enhanced to twenty years.                D
However, the amended provision will not apply to this case as the incident
has taken place prior to 16th August 2019.
       11. Surprisingly, the High Court has observed that Section 5 was
not applicable, and the offence committed by the respondent falls under
the category of a lesser offence of penetrative sexual assault, which is     E
punishable under Section 4 of the POCSO Act. Thus, the High Court
committed an obvious error by holding that the act committed by the
respondent was not an aggravated penetrative sexual assault. In fact,
the Special Court was right in punishing the respondent under Section 6
and sentencing him to undergo rigorous imprisonment for ten years with
a fine of Rs.5,000/-.                                                        F
       12. 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   G
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
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1000             SUPREME COURT REPORTS                         [2023] 10 S.C.R.


 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
 B
       stringent punishment. The impact of the obnoxious act on the mind of
       the victim-child will be life-long. 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
 C     Court and restore the judgment of the Trial Court.
              13. Accordingly, the appeal is allowed. The impugned judgment
       and order dated 18th November 2021 passed by the High Court of
       Judicature at Allahabad in Criminal Appeal No.5415 of 2018 is quashed
       and set aside and the judgment and order dated 24th August 2018 passed
 D     by the learned 8th Additional Sessions Judge, Special Judge POCSO
       Act, Jhansi in Special Session Trial No.134 of 2016 is restored.
       Accordingly, Criminal Appeal No.5415 of 2018 filed before the High
       Court stands dismissed. The respondent shall undergo rigorous
       imprisonment for ten years for the offence punishable under Section 6
       of the POCSO Act and shall pay a fine of Rs.5,000/-. We direct the
 E     respondent to surrender before the learned Special Judge under the
       POCSO Act, Jhansi within a maximum period of one month. On his
       surrender, the Special Court shall send the respondent to prison for
       undergoing the remaining sentence for the offence punishable under
       Section 6 of the POCSO Act. On failure of the respondent to surrender
 F     within one month from today, the Special Court shall forthwith issue a
       non-bailable warrant against the respondent and ensure that the
       respondent is committed to prison for undergoing the remaining sentence
       for the offence punishable under Section 6 of the POCSO Act. A copy
       of this judgment shall be immediately forwarded to the Special Court.
 G
       Nidhi Jain                                                   Appeal allowed.
       (Assisted by : Varun Dhond, LCRA)




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