STATE OF UTTAR PRADESH V. SONU KUSHWAHA

OVERVIEW OF THE CASE

ABSTRACT:

The case discussed through this analysis examines the decisions of the Allahabad High court and the Supreme Court in the case of State of Uttar Pradesh v. Sonu Kushwaha. The respondent in the presented case was found guilty sexual assault against a 10 year old boy. The case highlights an important aspect of the legal process which is interpretation of the facts and application of provisions in accordance to such facts. The present case highlights discordance between the interpretations of the Supreme Court of India and the High Court of Allahabad with respect to the applicability of section -6 of the POCSO Act as per the facts and circumstances presented. This case also underlines an important principle that in such grave and socially demeaning offences the court must not provide any scope of leniency in the application of laws.

FACTS:

The case pertains to a case under the POCSO Act. A FIR dated 26-03-2016 had been lodged against the respondent, Sonu Kushwaha, at Chirgaon police station, in the district of Jhansi. The FIR alleged that the respondent, Sonu Kushwaha went to the complainant’s house on 22-02-2016 at around 5 PM. The respondent took the complainat’s son ; aged:10 years , along with him to the temple. He then asked the child, the son of the complainant to put his penis in his mouth and suck his penis. As per the complaint, the respondent himself put his penis in the mouth of the child, the victim. The respondent also gave Rs.20 to the victim and threatened him not to disclose the matter or the incidents to anyone. However, when the victim returned home and was asked by his family as to where from he got Rs.20, the victim narrated the incidents that had taken place. Through the findings of the High Court, it was found that it was an established and proved fact as per evidence that the accused respondent had put in penis into the mouth of the victim and consequentially semen was discharged into the mouth of the victim.

The Trial court-Court of Additional sessions judge of Jhansi held that the accused was to be held guilty under the charges of Section 377 and 506, IPC 1860 and along with section 3, POCSO Act 2012.

• Section 377- 7 years rigorous imprisonment + fine of Rs. 2000
• Section 506- 1year rigorous imprisonment + fine of Rs. 1000
• Section 4, POCSO- 7 years and may extend to lifetime

The sentence of the trial court directed 10 years of rigorous punishment accompanied by a fine of Rs.5000. [1]

The High Court had decided that the act of the accused-respondent came under the ambit of Penetrative sexual assault, which was prosecutable under Section 4, POCSO Act 2012 and not ‘Aggravated penetrative sexual assault’ or ‘aggravated sexual assault’ as in Sections 6 and 10 of the same act. And thus this court directed a term of just 7 years.[2]

ISSUES:

Whether the accused respondent can be held culpable of having committed an offence coming under the ambit of section-6, POCSO Act which pertains to ‘Aggravated penetrative sexual assault’ i.e.; whether section 6 would be applicable to the presented case.[3]

CONTENTIONS:

There was no discordance as to the fact that

• The victim was a child below 12 years of age
• The accused had asked the victim to carry out an act which is an offence as per section 4 of POCSO Act, 2012.

APPELLANTS: The State of Uttar Pradesh

The counsel standing on behalf of the appellants contended that the textual definition ‘penetrative sexual assault’ as delineated in the ambit of section 3 (a) of the POCSO Act, 2012. The counsel asserted upon the principle laid down by Section 5 (m) POCSO Act, that if the child, victim upon whom the offence of penetrative sexual has been inflicted, is below the age of 12 years, then the offender is held guilty to have committed aggravated penetrative assault. Otherwise stated, the counsel asserted that if an accused commits the offence of ‘penetrative sexual assault’ on a child (victim) who is less than 12 years in age, then the offender is considered to have committed ‘aggravated penetrative sexual assault’. With this contention, the counsel sought to claim that the decision of the High court in this case, which held that section-6 of the POCSO Act which entailed ‘aggravated penetrative sexual assault’ was inapplicable, remains flawed and erroneous due to the presented principle.[4]

RESPONDENTS: The Accused

The counsel presenting on behalf of the Accused pleaded that the accused had already served the sentence of the High Court which directed a term of 7 years of rigorous imprisonment. The counsel insisted on the fact that, post serving of the sentence, there has been significant reformation in the accused and in fact he had initiated to move ahead into a fresh life. The counsel pleaded that since there has been significant reformation in the accused and his moving ahead in life and his getting married, it would be inequitable to subject the accused to further term/punishment. And hence application of section 6 to the present case would be unjust.[5]

JUDGMENT:

The court accepted the contention of the counsel for the appellants that in the presented case the sexual offence inflicted by the accused would come under the ambit of ‘Aggravated penetrative sexual offence’. The commission of such offence against the victim aged below 12 years, was prosecutable under section 5(m) and subsequently section 6 of the POCSO Act 2012.

The court invalidated and set aside the judgment of the High Court highlighting the error in the interpretation of the facts and circumstances of the case and to the determination whether the said act of the offender (respondent) was within the scope of aggravated penetrative sexual assault.

The court further clarified that provisions of the POCSO Act including section 6 of the same Act do not provide space for the discretion of the court while granting sentences or punishments. And the court has to abide by the prescribed punishment or penalty as per the provision or statute.The court also held that owing to the nature of the offence committed by the respondent , he is not entitled to any leniency as provided , in this case, by the High Court through the modification of the sentence from 10 years (as given by Trial court) to 7 years.[6]

CONCLUSION AND ANALYSIS

The present case aptly enunciates the evil of sexual assault and harassment inflicted against minors and children, which imprint a lifelong trauma on the psyche of the victim and his/her family. Therefore it is imperative that such the court must not provide any space for leniency and arbitrariness in pronouncing judgments in such cases. The provisions and punishments prescribed through the statutes and Acts must be applied without any alterations or modifications hence reinforcing the principle of “A Verbis Legis Non Est Recedendum” i.e; “From words of law there is no departure”. And thus any leniency provided by the courts by means of modification of application of laws and provisions would lead to curtailment of the due process and objective of justice.[7]

This case analysis has been written by Insha Pani, student at National Law University Odisha and an Intern under The Legal Vidhiya.

[1] State Of U.P. vs Sonu Kushwaha on 5 July, 2023, https://indiankanoon.org/doc/47954856/ (last visited Nov 19, 2023).

[2] DaamanNGO, https://www.daaman.org/jd/Sonu-Kushwaha-Vs-State-of-Uttar-Pradesh/putting-penis-in-childs-mouth-not-aggravated-sexual-assault-or-sexual-assault-but-penetrative-sexual-assault (last visited Nov 19, 2023).

[3] CASE COMMENT: SONU KUSHWAHA v. STATE OF UP by-Yash Singh, ijalr, https://ijalr.in/volume-2/issue-2/case-comment-sonu-kushwaha-v-state-of-up-by-yash-singh/ (last visited Nov 19, 2023).

[4] State of U.P. versus Sonu Kushwaha, https://www.indianemployees.com/judgments/details/state-of-u-p-versus-sonu-kushwaha (last visited Nov 19, 2023).

[5] State Of U.P. vs Sonu Kushwaha on 5 July, 2023, supra note 1.

[6] Id.

[7] Nimish Chandra on LinkedIn: State of U.P. vs. Sonu Kushwaha, https://www.linkedin.com/posts/nimish-chandra-629866194_state-of-up-vs-sonu-kushwaha-activity-7082839101367795712-p32g (last visited Nov 19, 2023).

Admin