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 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 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 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 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
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 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 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 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 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 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, 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 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 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, 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 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]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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