HC ruling ignores specific provision defining aggravated form of sexual offence
However, these are not the only circumstances. Where the crime involves a group of offenders, or is done repeatedly, or when it pertains to the use of deadly weapons or causes grievous harm or injury, or leads to physical or mental incapacitation, pregnancy, or disease, it is also an aggravated form of the offence. Significantly, Section 5(m) adds “whoever commits penetrative sexual assault on a child below 12 years” to this list. The High Court seems to have missed either this legal provision while reducing the sentence, or the fact that the child was about 10 years old when the offence took place. The fact that the convicted person will stay in jail for seven years will not obviate the deleterious effect of the ruling — that a particular act, amounting to a penetrative sexual act, does not attract the punishment prescribed for its aggravated form — will have on lower courts trying similar cases. It is a matter of coincidence that this ruling came from the Allahabad High Court on the same day as the Supreme Court’s judgment underscoring the importance of not diluting the gravity of an offence against a child by ignoring the plain meaning of POCSO’s provisions. The verdict in Sonu Kushwaha vs State of U.P. is a fit case for review, as it seems to be based on an error of law.
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