Supreme Court Restores Conviction and Sentences Accused to Rigorous Imprisonment for Aggravated Penetrative Sexual Assault

In a significant ruling, the Supreme Court of India has restored the conviction and sentences of an accused in a case involving aggravated penetrative sexual assault under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The bench comprising of Hon'ble Justice Abhay S. Oka and Hon'ble Justice Rajesh Bindal delivered the judgment on July 5, 2023.

The case, State of U.P. v. Sonu Kushwaha, Criminal Appeal No. 1633 of 2023, arose from the prosecution of the respondent-accused for offences punishable under Sections 377 and 506 of the Indian Penal Code, along with Sections 5 and 6 of the POCSO Act. The Special Judge under the POCSO Act had initially convicted the accused on all counts and sentenced him accordingly.

However, the accused filed an appeal before the High Court of Judicature at Allahabad, which modified the conviction to penetrative sexual assault under Section 4 of the POCSO Act. The High Court also reduced the sentence imposed by the Trial Court. Aggrieved by this decision, the State of U.P. approached the Supreme Court to challenge the High Court's order.

The key question before the Supreme Court was whether the accused's act amounted to aggravated penetrative sexual assault, as defined under Section 5(m) of the POCSO Act. After carefully considering the evidence on record, the Court observed that the accused had indeed committed aggravated penetrative sexual assault on a child below twelve years, as stated in the impugned judgment of the High Court.

The Court noted that Section 6 of the POCSO Act prescribes a minimum sentence for aggravated penetrative sexual assault. In this case, the Trial Court had rightly imposed a sentence of rigorous imprisonment for ten years, while the High Court had erred in reducing it. The Court emphasized that when a penal provision specifies a minimum sentence, the Courts cannot impose a lesser sentence unless provided by law. Given the gravity of the crime and its lifelong impact on the victim, the Court found no grounds for leniency.

Accordingly, the Supreme Court allowed the appeal, setting aside the High Court's decision and restoring the Trial Court's judgment. The accused was directed to undergo rigorous imprisonment for ten years for the offence punishable under Section 6 of the POCSO Act. Additionally, a fine of Rs. 5,000/- was imposed. The Court ordered the accused to surrender within one month to serve the remaining sentence. In case of non-compliance, a non-bailable warrant would be issued for his arrest.

DATE OF DECISION: July 5, 2023

State of U.P.  vs Sonu Kushwaha