Awarding Statutory Minimum Sentence Under POCSO Act Not "Enhancement" U/S 386 CrPC: Bombay High Court

The Bench had drawn a distinction between enhancement and imposition of a mandatory minimum sentence holding that where the legislature prescribes a minimum punishment, courts have no discretion to award a lesser sentence. Correcting the trial court’s omission by awarding the statutory minimum would ensure compliance with the legislative mandate, the bench further said.

Justice Rajnish R. Vyas, observed, “I am of the view that what has been sought is the awarding minimum statutory sentence under Sections 6 of the Act of 2012 and 376(2)(n) of IPC and not the enhancement of the sentence. The increase in the length of sentence may be a consequence of awarding the statutory minimum sentence, but it cannot be called an enhancement of the sentence. Thus exercising of powers under section 386 of code of criminal procedure, in the facts and circumstances of the case, would in fact be in the interest of justice”.

“It is further necessary to mention here that when the appeal is preferred for the enhancement of the sentence, what is challenged is the discretion of the Trial Court and the manner in which it is exercised. In this case, as already stated, there is no discretion given to the Court for awarding a sentence less than twenty years in the case of commission of an offence under Section 6 of the Act of 2012 and a sentence not less than ten years under Section 376(2)(n) of IPC”, the bench further observed.

The Court noted that the offence was committed after the 2019 amendment to Section 6 of the POCSO Act, which raised the minimum punishment for aggravated penetrative sexual assault from 10 years to 20 years. Since the trial court had awarded only seven years, the sentence was contrary to the existing law.

Advocate G. G. Suryawanshi appeared for the appellant and M. N. Ghanekar, APP appeared for the respondent.

In the matter, the Court heard cross-appeals arising from a 20-06-2024 judgment of the Special POCSO Court at Nanded. While the accused had challenged his conviction for repeated rape and aggravated penetrative sexual assault, the minor survivor sought imposition of the statutory minimum sentence prescribed under the amended law.

Thereafter, based on the evidences, the trial court had acquitted the accused of offences under Sections 363 and 366-A IPC but convicted him under Section 376(2)(n) of the IPC and Section 5(l) punishable under Section 6 of the POCSO Act, sentencing him to seven years’ rigorous imprisonment.

Now, before the High Court, the accused argued that the survivor had accompanied him voluntarily and pointed to the absence of external injuries and delay in medical examination. The Court rejected these submissions, holding that the prosecution had conclusively established the age of the minor through birth records and medical testimony. It reiterated that consent of a minor is legally immaterial.

The Court also relied upon the statutory presumption under Sections 29 and 30 of the POCSO Act, observing that once foundational facts are proved, the burden shifts to the accused to rebut the presumption. As no defence evidence was led and the accused did not discharge the statutory burden, the presumption remained intact.

Accordingly, while dismissing the accused’s appeal against acquittal under Sections 363 and 366-A, the Bench upheld the conviction.

The Court imposed the statutory minimum sentence of 20 years’ rigorous imprisonment under Section 6 of the POCSO Act. Considering the scope of Section 42 of the Act, the Bench said that greater punishment should prevail.

Cause Title: Santosh Maroti Bhandare v. The State of Maharashtra [Neutral Citation: 2026:BHC-AUG:6078]

Appearances:

Appellant: G. G. Suryawanshi, Rupesh A. Jaiswal, Advocates.

Respondent: M. N. Ghanekar, APP.

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