Conviction,Sentence
Section 376D IPC,"Imprisonment for life & fine of Rs. 1,000/-, in default,
additional rigorous imprisonment for six months
Section 506B of the IPC,"Rigorous imprisonment for three years & fine of Rs.
200/-, in default, additional rigorous imprisonment for
three months
15. Now, the question would be whether the learned trial Court is justified in awarding sentence for imprisonment of life to A-1 for having committed",
offence under Section 6 of the POCSO Act or the same is on higher side and can be reduced, as contended by learned counsel for the appellant by",
placing reliance on a recent decision of the Supreme Court in Sonu Kushwaha (supra).,
16. In Sonu Kushwaha (supra), their Lordships of the Supreme Court finding the accused therein to be guilty of having committed aggravated",
penetrative sexual assault punishable under Section 6 of the POCSO Act, 2012 proceeded to convict him for the said offence and upon further finding",
that the minimum punishment prescribed for offence punishable under Section 6 of the POCSO Act, 2012 at the time when offence was committed",
i.e. prior to 16.08.2009, was 10 years’ RI, awarded him sentence for 10 years’ RI with fine of Rs.5,000/- and held in Para-11, 12 & 13 as",
under:,
“11. Section 6, as applicable before its substitution on 16-08-2019, 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 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. However, the amended",
provision will not apply to this case as the incident has taken place prior to 16th August 2019.,
12. 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 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/.",
13. 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, we find no such",
provision in the POCSO Act.,
14. 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 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 Court and restore the judgment of",
the Trial Court.,
15. 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 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/-.â€",
17. In that view of the matter and considering the principles of law laid down by their Lordships of the Supreme Court in Sonu Kushwaha (supra),",
while affirming the conviction of A-1 for offence under Section 6 of the POCSO Act, 2012 read with Section 376 of IPC, we award him sentence for",
a period of 10 years’ rigorous imprisonment by reducing it from imprisonment for life with fine of Rs. 1,000/-, as awarded by the learned trial",
Court. However, in view of discussion made herein above, conviction and sentence of A-1 for offence under Section 506B of the IPC, as awarded by",
the learned trial Court, is hereby maintained and shall remain as it is.",
18. Resultantly, Cr.A.No.509/2016 preferred by Baleshwar Dhada @ Bali (A-1) is partly allowed and Cr.A.No.504/2016 preferred by Surendra",
Kumar Chouhan @ Dadu (A-2) is allowed. A-2 is already on bail. He need not surrender. However, his bail bonds shall remain in force for a period",
of six months in view of the provision contained in Section 437A of the CrPC.,
19. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and,
action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant (A-1) is",
suffering the jail sentence.,
