NEW DELHI: The Supreme Court has set aside the Allahabad High Court's judgement which reduced sentence of a man from 10 years to seven years jail for aggravated penetrative sexual assault upon a child below 12 years of age, saying that courts cannot do offence to section and impose a lesser sentence.

A bench of Justices Abhay S Oka and Rajesh Bindal noted that the impact of the obnoxious act on the mind of the victim­- child will be life­long, while refusing to accept the accused's plea to show leniency, as he had recently got married and completely reformed.

“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," the bench said.

The court allowed an appeal by the Uttar Pradesh government against the Allahabad High Court judgment, of 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.

In its appeal, the Uttar Pradesh government said 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 POCSO Act.

After going through legal provisions, the court said 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 said 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.

It 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 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 bench said.

The bench also said that 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," the bench said.

The bench directed the accused to surrender before the special judge under the POCSO Act, Jhansi within a maximum period of one month to serve the remaining period of jail term.

[Read Judgment]