SC: Courts can’t impose lesser sentence under POCSO Act, impact on victim­-child will be life­long

The impact of the obnoxious act on the mind of the victim­-child will be life­long and no leniency can be shown to the accused under the POCSO Act, observed the apex court, writes ETV Bharat's Sumit Saxena.

New Delhi: The Supreme Court has enhanced the imprisonment of an accused convicted under various sections of the Indian Penal Code (IPC) and Children from Sexual Offences Act (POCSO Act) – including an offence of aggravated penetrative sexual assault – saying that courts cannot do offence to section and impose a lesser sentence.

The apex court stressed that the impact of the obnoxious act on the mind of the victim­-child will be life­long and refused to accept the accused's plea to show leniency, as he had recently got married and completely reformed.

A bench comprising Justices Abhay S. Oka and Rajesh Bindal said: "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 life­long”.

Justice Oka, who authored the judgment on behalf of the bench, said the impact is bound to adversely affect the healthy growth of the victim. He said, "There is no dispute that the age of the victim was less than twelve years at the time of the incident".

The top court set aside the Allahabad High Court judgment, delivered on November 18, 2021, which held that the accused 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. The Uttar Pradesh government had moved the apex court and the only question involved in this appeal was whether the respondent is guilty of an offence of aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act.

The High Court had reduced the ten-year sentence imposed by the trial court to seven-year imprisonment, which the accused has already undergone. The counsel, representing the accused, said he has completely reformed and he has moved ahead in life and, in fact, recently got married. The counsel contended 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 sentence.

The apex court noted that the High Court committed an obvious error by holding that the act committed by the respondent was not an aggravated penetrative sexual assault. The bench noted that 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.

The top court said 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, we find no such provision in the POCSO Act. Therefore, notwithstanding the fact that the respondent (accused) 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”, the apex court said.

“Therefore, we have no option but to set aside the impugned judgment of the High Court and restore the judgment of the trial court”, said Justice Oka, in the judgment delivered on July 5.

Concluding the judgment, the top court said: “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 respondent to surrender before the 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”.