Separate Sentence U/S 376AB IPC Need Not Be Imposed After Punishment U/S 6 POCSO Act For Same Act: Kerala High Court

The Court affirmed the conviction but set aside the sentence imposed under Section 376AB IPC while upholding the sentences for the other offences.

The Court was hearing an appeal under Section 374(2) CrPC challenging the conviction and sentence imposed by the Fast Track Special Court, North Paravur, for offences under Section 376AB IPC and Sections 3(a) read with 4(2) and 5(m) read with 6 of the POCSO Act.

A Bench of Justice A. Badharudeen observed: “It is noticed that despite sentencing the accused for the offence punishable under Section 6 of the POCSO Act, the learned Special Judge sentenced the accused to undergo rigorous imprisonment for 20 years and to pay a fine of Rs.50,000/- for the offence punishable under Section 376AB of IPC, with a default sentence of six months. In this connection, the learned Special Judge lost sight of Section 42 of the POCSO Act.”

The Court added: “Therefore, in the instant case, there is no reason to impose sentence for the offence punishable under Section 376AB of IPC after imposing sentence for the offence punishable under Section 6 of the POCSO Act. Therefore, the sentence imposed for the offence punishable under Section 376AB of IPC is set aside.”

Advocates Safna P.S. and Saurav B. appeared for the appellant. Public Prosecutor M.A. Shihab appeared for the State.

Background

The prosecution case concerned aggravated penetrative sexual assault upon a three-year-old child. After trial, the Special Court convicted the appellant under Section 376AB IPC and Sections 3(a) read with 4(2) and 5(m) read with 6 of the POCSO Act.

The Special Court imposed separate sentences of 20 years’ rigorous imprisonment and fines of ₹50,000 under Sections 4(2) and 6 of the POCSO Act and Section 376AB IPC. It directed the sentences to run concurrently.

The appellant contended that the evidence did not establish penetration and could, at most, attract the offence of sexual assault under Sections 7 and 8 of the POCSO Act. He relied on Laxman Jangde v. State of Chhattisgarh (2025) and Kuttappan @ Babukuttan v. State of Kerala (2022).

The Public Prosecutor opposed the appeal and relied on Raveendran V.S. v. Deputy Superintendent of Police (2025) and Nawabuddin v. State of Uttarakhand (2022) to support the conviction for penetrative sexual assault.

Court’s Observations

Section 42 Provides For Alternate Punishment

The Court stated that the Special Judge had overlooked Section 42 of the POCSO Act while imposing separate sentences under Section 6 of the POCSO Act and Section 376AB IPC.

The Court reproduced Section 42, which provides: “Where an act or omission constitutes an offence punishable under this Act and also under section 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376 [376A, 376AB, 376B, 376C, 376D, 376DA, 376DB], [376E, section 509 of the Indian Penal Code (45 of 1860) or section 67B of the Information Technology Act, 2000 (21 of 2000)], then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.”

Applying the provision, the Court held that no separate sentence under Section 376AB IPC was required after the accused had been sentenced under Section 6 of the POCSO Act. The Court accordingly set aside only the sentence imposed under Section 376AB IPC.

Conviction For Aggravated Penetrative Sexual Assault Upheld

The Court considered the distinction between penetrative sexual assault under Section 3 and sexual assault without penetration under Section 7 of the POCSO Act. It observed that the child’s testimony and the medical evidence could not be treated as establishing merely a physical touch without penetration.

The Court stated: “Thus, there is a subtle difference between penetrative sexual assault and sexual assault. In case of mere sexual assault, a touch on the vagina, penis, anus, or breast of the child with sexual intent is sufficient. But Section 7 does not provide that the placement of the penis on the vagina, as spoken by PW1 here.”

The Court considered Laxman Jangde (2025) and Kuttappan @ Babukuttan (2022), in which the evidence did not establish penetration. It also examined Raveendran V.S. (2025) and Nawabuddin (2022) while assessing whether the evidence in the present case satisfied the statutory requirement.

On the facts before it, the Court concluded: “In view of the above discussion, the offence to be found in the instant case is nothing but penetrative as well as aggravated sexual assault as defined under Section 3(a) r/w 4(2) and 5(m) r/w 6 of the POCSO Act as well as Section 376AB of IPC.”

The Court therefore affirmed the conviction and noted that the minimum punishment prescribed under Section 6 of the POCSO Act was 20 years.

Conclusion

The Court partly allowed the appeal and modified the sentence without disturbing the conviction. It set aside the 20-year sentence and ₹50,000 fine imposed under Section 376AB IPC while upholding the sentences imposed for the other offences.

The Court held: “Accordingly, this appeal is allowed in part. The conviction imposed by the learned Special Judge is confirmed. But the sentence imposed is modified. Accordingly, the sentence imposed for the offence punishable under Section 376AB of IPC is set aside while upholding the sentence imposed for the other offences.”

As the appellant was already undergoing his sentence, the Court found that no further order was required. It directed the Registry to forward a copy of the judgment to the Special Court for information and compliance.

Cause Title: Shaji v. State of Kerala (Neutral Citation: 2026:KER:78048)

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