Unnao rape case: Why Delhi HC suspended Kuldeep Sengar’s life sentence

Given that Sengar has already been incarcerated for over seven years in jail, the bench held that keeping him incarcerated during the pendency of his appeal was not justified at this stage.

The Delhi High Court, on Tuesday, suspended the life sentence of former BJP MLA Kuldeep Singh Sengar in the 2017 Unnao rape case, ruling that he does not qualify as a “public servant” under the Protection of Children from Sexual Offences (POCSO) Act and that the charge of aggravated penetrative sexual assault was, therefore, not prima facie made out.

A division bench of Justices Subramonium Prasad and Harish Vaidyanathan Shankar granted relief while hearing Sengar’s appeal against his December 2019 conviction.

The court noted that the suspension of sentence was warranted as Sengar has already spent more than seven years and five months in custody, exceeding the minimum punishment prescribed for non-aggravated offences under the POCSO Act.

Why the court ruled out an “aggravated” offence

Under Section 5 of the POCSO Act, penetrative sexual assault is considered “aggravated” when committed by certain categories of persons, such as public servants, police personnel, members of the armed or security forces, jail or hospital staff, or individuals in a position of trust or authority over a child. Such offences attract a minimum sentence of 20 years, which may extend to life imprisonment.

The trial court had treated Sengar, an elected MLA at the time, as a public servant and convicted him of an aggravated offence.

The High Court, however, disagreed with this reasoning.

The bench held that Sengar could not be categorised as a public servant under Section 5(c) of the POCSO Act or Section 376(2)(b) of the IPC. It further found that he did not fall under Section 5(p) of the POCSO Act, which deals with persons in a position of trust or authority.

“For the purpose of suspension of sentence, the appellant cannot be brought within the ambit of ‘aggravated penetrative sexual assault’,” the court observed.

The court said that once the aggravated offence provision is excluded, the case would fall under Section 3 read with Section 4 of the POCSO Act, which, before the 2019 amendment, prescribed a minimum sentence of seven years’ imprisonment.

Given that Sengar has already been incarcerated for over seven years in jail, the bench held that keeping him incarcerated during the pendency of his appeal was not justified at this stage.

While suspending the sentence until the appeal is decided, the High Court directed Sengar to furnish a personal bond of Rs 15 lakh with three sureties. It imposed strict conditions, including restraining him from entering a five-km radius of the survivor’s residence in Delhi, prohibiting any contact or intimidation of the survivor or her family, depositing his passport, and reporting weekly to the local police station.

Despite the relief, Sengar will remain in prison as he is serving a separate 10-year sentence in the custodial death case of the survivor’s father, in which he has not been granted bail.

The case stems from the abduction and rape of a minor girl in Unnao, Uttar Pradesh, in June 2017. The survivor was later found at a police station, and allegations emerged that she and her family were threatened to silence them. Following judicial intervention, an FIR was lodged and Sengar was arrested.

In August 2019, the Supreme Court transferred four related cases from Uttar Pradesh to Delhi and ordered day-to-day hearings. A Delhi trial court convicted Sengar in December 2019 and sentenced him to life imprisonment.

The High Court clarified that its order only suspends the sentence during the pendency of the appeal and does not amount to an acquittal.