Case Note & Summary
The State of Uttar Pradesh appealed against the judgment of the Allahabad High Court which had reduced the conviction of the respondent, Sonu Kushwaha, from aggravated penetrative sexual assault under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 to penetrative sexual assault under Section 4 of the same Act. The respondent was originally convicted by the Special Judge under the POCSO Act for offences under Sections 377 and 506 of the Indian Penal Code, 1860, and Section 5 read with Section 6 of the POCSO Act. He was sentenced to ten years rigorous imprisonment for the POCSO offence. On appeal, the High Court held that the respondent was guilty only of penetrative sexual assault under Section 4, reducing the sentence to seven years. The Supreme Court noted that it was undisputed that the victim was below 12 years of age at the time of the offence. The Court observed that under Section 5(m) of the POCSO Act, penetrative sexual assault on a child below 12 years constitutes aggravated penetrative sexual assault, punishable under Section 6. The High Court had failed to consider this provision and erroneously reduced the offence. The Supreme Court allowed the appeal, set aside the High Court's judgment, and restored the conviction and sentence under Section 6 of the POCSO Act as imposed by the trial court.
Headnote
A) Criminal Law - Aggravated Penetrative Sexual Assault - Section 6, Protection of Children from Sexual Offences Act, 2012 - Age of Victim - The issue was whether the respondent committed aggravated penetrative sexual assault under Section 6 or simple penetrative sexual assault under Section 4 of the POCSO Act. The Supreme Court held that since the victim was below 12 years of age, the offence squarely falls under Section 5(m) read with Section 6 of the POCSO Act, which provides for aggravated penetrative sexual assault. The High Court erred in reducing the offence to Section 4. (Paras 1-6)
Issue of Consideration
Whether the respondent is guilty of aggravated penetrative sexual assault under Section 6 of the POCSO Act or only penetrative sexual assault under Section 4 of the POCSO Act, given that the victim was below 12 years of age.
Final Decision
The Supreme Court allowed the appeal, set aside the High Court's judgment, and restored the conviction and sentence under Section 6 of the POCSO Act as imposed by the trial court.
Law Points
- Aggravated penetrative sexual assault
- Section 6 POCSO Act
- Victim below 12 years
- Age of victim determinative
- High Court error
- Reduction of sentence improper
Case Details
Criminal Appeal No. 1633 of 2023
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Nature of Litigation
Criminal appeal against High Court judgment reducing conviction from aggravated penetrative sexual assault to penetrative sexual assault under POCSO Act.
Remedy Sought
State of U.P. sought restoration of conviction under Section 6 of POCSO Act and sentence of ten years rigorous imprisonment.
Filing Reason
High Court erroneously reduced the offence from Section 6 to Section 4 of POCSO Act despite victim being below 12 years.
Previous Decisions
Trial court convicted respondent under Sections 377, 506 IPC and Section 5 read with Section 6 POCSO Act, sentencing him to ten years rigorous imprisonment. High Court reduced conviction to Section 4 POCSO Act with seven years imprisonment.
Issues
Whether the High Court was correct in reducing the conviction from aggravated penetrative sexual assault under Section 6 to penetrative sexual assault under Section 4 of the POCSO Act.
Whether the victim's age below 12 years mandates application of Section 5(m) and Section 6 of the POCSO Act.
Submissions/Arguments
Appellant (State of U.P.) argued that the victim was below 12 years, hence the offence falls under Section 5(m) read with Section 6 of POCSO Act, not Section 4.
Respondent did not dispute the age of the victim but argued that the High Court's finding was correct.
Ratio Decidendi
Under Section 5(m) of the POCSO Act, penetrative sexual assault on a child below twelve years constitutes aggravated penetrative sexual assault, punishable under Section 6. The High Court erred in not applying this provision and reducing the offence to Section 4.
Judgment Excerpts
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.
It is not disputed that the age of the victim was less than twelve years at the time of the commission of the offence.
Therefore, the High Court was not justified in holding that the respondent was guilty of the offence punishable under Section 4 of the POCSO Act.
Procedural History
The respondent was convicted by the 8th Additional Sessions Judge, Jhansi (Special Judge under POCSO Act) for offences under Sections 377 and 506 IPC and Section 5 read with Section 6 POCSO Act, sentenced to ten years rigorous imprisonment. The respondent appealed to the Allahabad High Court, which reduced the conviction to Section 4 POCSO Act with seven years imprisonment. The State of U.P. appealed to the Supreme Court.
Acts & Sections
- Protection of Children from Sexual Offences Act, 2012: Section 4, Section 5, Section 6
- Indian Penal Code, 1860: Section 377, Section 506
