The Bombay High Court has held that imposing the statutory minimum sentence under Section 6 of the Protection of Children from Sexual Offences Act, 2012, does not amount to “enhancement of sentence” under Section 386 of the Code of Criminal Procedure, and an appellate court is duty-bound to correct an illegally low sentence that falls below the statutory mandate.
Case Details
- Case Title: Santosh Maroti Bhandare v. State of Maharashtra & Anr. with connected appeal
- Court: Bombay High Court, Bench at Aurangabad
- Judge: Justice Rajnish R. Vyas
- Date of Judgment: February 06, 2026
- Citation: 2026:BHC-AUG:6078
- Trial Court Case: Special Case No. 26 of 2022 (POCSO), Nanded
Background of the Case
The accused, Santosh Maroti Bhandare, aged 25 years, was convicted by the Special Judge (POCSO), Nanded, for offences under Section 376(2)(n) of the Indian Penal Code and Section 5(l) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
The Trial Court sentenced him to seven years’ rigorous imprisonment under Section 6 of the POCSO Act and imposed a fine of ₹5,000. No separate sentence was awarded under Section 376(2)(n) IPC.
The accused challenged his conviction in Criminal Appeal No. 567 of 2024. Simultaneously, the victim filed Criminal Appeal No. 740 of 2024 seeking imposition of the statutory minimum sentence and challenging the acquittal under Sections 363 and 366-A IPC.
The prosecution case stated that on 20 January 2022, the minor victim was lured by the accused on the pretext of marriage.
She was taken from Nanded to Aurangabad and then to Ahmedabad, where she was subjected to repeated sexual intercourse on 23 and 24 January 2022.
Whether the Victim Was a “Child” Under POCSO
A central issue was whether the victim was below 18 years at the time of the offence. The birth certificate (Exhibit 57) showed her date of birth as 09 November 2007. The Medical Health Officer (PW-10) corroborated the birth records maintained by the Municipal Corporation.
The Court held that the prosecution successfully proved the victim’s age. At the time of the incident, she was 14 years and 2 months old, clearly qualifying as a “child” under Section 2(d) of the POCSO Act.
Justice Vyas concluded:
“The prosecution has rightly proved that the victim was a child under the Act of 2012.”
Evidence of Sexual Assault and Presumption Under Sections 29 and 30 POCSO
The victim (PW-2) testified that the accused forcibly had sexual intercourse with her on two occasions under the pretext of marriage. Medical evidence revealed old hymen tears consistent with sexual intercourse.
The Court emphasized that even if consent was argued, the consent of a minor is legally immaterial:
“It is a well-settled principle of law that the consent of the minor victim is, in fact, no consent in the eyes of the law.”
The Court further applied the statutory presumption under Sections 29 and 30 of the POCSO Act. Once foundational facts were proved, the burden shifted to the accused to rebut the presumption.
The accused neither entered the witness box nor rebutted the presumption effectively.
Accordingly, the conviction under Section 376(2)(n) IPC and Section 5(l) read with Section 6 of the POCSO Act was upheld.
Acquittal Under Sections 363 and 366-A IPC
The victim also challenged the acquittal under Sections 363 and 366-A IPC. The High Court reiterated the settled principles governing appeals against acquittal, noting that interference is warranted only when findings are perverse or illegal.
The Court found that the Trial Court’s appreciation of evidence regarding kidnapping and inducement was proper and required no interference.
Thus, the acquittal under Sections 363 and 366-A IPC was maintained.
Core Legal Issue: Is Imposition of Minimum Statutory Sentence an “Enhancement”?
The most significant question addressed was whether increasing the sentence from seven years to the statutory minimum of twenty years under Section 6 POCSO would amount to “enhancement” barred under Section 386 CrPC.
The Court undertook a detailed analysis distinguishing “enhancement of sentence” from “imposition of statutory minimum punishment.” It observed:
“If the statutory minimum sentence is not imposed by the trial court and lesser sentence than statutory minimum is imposed, then corrective steps will have to be taken in an appeal and therefore it cannot be called as an enhancement of the sentence.”
Section 6 of the POCSO Act (as amended in 2019) mandates a minimum of 20 years’ rigorous imprisonment for aggravated penetrative sexual assault. Section 376(2)(n) IPC mandates a minimum of 10 years.
The Trial Court’s sentence of seven years was below the statutory minimum and therefore illegal.
The High Court held that imposing the minimum prescribed sentence was not an exercise of discretion but a statutory obligation:
“The negative wording in the section clearly shows that awarding of sentence of 20 years is mandatory and less than it would be against the provision of law.”
It further clarified:
“What has been sought is the awarding minimum statutory sentence… and not the enhancement of the sentence.”
Section 42 POCSO: Higher Punishment to Prevail
Invoking Section 42 of the POCSO Act, the Court directed that when an act constitutes offences under both IPC and POCSO, the greater punishment must prevail.
Since Section 6 POCSO prescribes a higher minimum (20 years) than Section 376(2)(n) IPC (10 years), the accused was directed to undergo 20 years’ rigorous imprisonment.
Final Order
The High Court:
- Dismissed the accused’s appeal against conviction.
- Upheld conviction under Section 376(2)(n) IPC and Section 5(l) read with Section 6 POCSO.
- Imposed the statutory minimum sentence of 20 years under Section 6 POCSO and 10 years under Section 376(2)(n) IPC.
- Directed that, in view of Section 42 POCSO, the accused shall undergo the greater punishment of 20 years’ rigorous imprisonment.
- Maintained acquittal under Sections 363 and 366-A IPC.
The Court concluded:
“While exercising power under section 386 of the Code of Criminal Procedure in an appeal against conviction, the minimum statutory sentence can be imposed, and such imposition will not amount to an enhancement of sentence.”
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