Shivaji Rathore 24-Dec-2025
The suspension of sentence granted to former BJP MLA Kuldeep Singh Sengar by the Delhi High Court in the 2017 Unnao rape case has generated intense legal and public debate. While the gravity of the allegations remains undisputed, the High Court’s order is rooted in a narrow but significant question of law whether the offence of aggravated penetrative sexual assault was legally made out against the appellant under the POCSO Act and the IPC.
This article explains, in clear legal terms, why the sentence was suspended, what the Court held, and what it does not mean for the merits of the appeal.
Background of the Unnao Rape Case
The case pertains to allegations that a minor girl was kidnapped and raped by Kuldeep Singh Sengar between June 11 and June 20, 2017. It was further alleged that the survivor was sold for ₹60,000 and later recovered from the Maakhi Police Station. The prosecution case also spoke of continuous threats and intimidation by police officials acting under Sengar’s influence. After directions from the Allahabad High Court, an FIR was registered for offences including rape, kidnapping, criminal intimidation, and provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). In August 2019, the Supreme Court of India transferred the trial to Delhi, directing that it be conducted on a day-to-day basis. In December 2019, the trial court convicted Sengar and sentenced him to life imprisonment, treating him as a “public servant” and holding that his position aggravated the offence.
Legal Issue Before the Delhi High Court:- While hearing Sengar’s appeal against conviction, a Division Bench comprising Justice Subramonium Prasad and Justice Harish Vaidynathan Shankar examined his application for suspension of sentence. The core issue was not whether the offence occurred, but whether the conviction for “aggravated penetrative sexual assault” was prima facie sustainable in law.
Understanding “Aggravated Penetrative Sexual Assault” Under POCSO Section 5 of the POCSO Act enumerates circumstances in which a penetrative sexual assault becomes “aggravated”. These include situations where the offence is committed by:
A public servant, A police officer within the limits of the police station, A member of the armed or security forces, Jail or hospital staff, A person in a position of trust or authority over the child, An aggravated offence attracts a minimum sentence of 20 years, extendable to life imprisonment. The trial court had invoked these provisions on the reasoning that Sengar, being an elected MLA, was a “public servant” and a person in a position of trust.
Why the High Court Found the Aggravated Offence Not Made Out:- The Delhi High Court, at the stage of considering suspension of sentence, took a prima facie view that:
1. MLA Is Not a “Public Servant” for Section 5(c) POCSO:- The Court held that Kuldeep Singh Sengar does not fall within the definition of “public servant” for the purpose of Section 5(c) of the POCSO Act or Section 376(2)(b) of the IPC. Merely holding an elected office does not automatically bring a person within the statutory meaning contemplated under these provisions.
2. “Position of Trust or Authority” Not Established
The Bench further observed that Sengar could not be brought within the four corners of Section 5(p) of the POCSO Act, which applies to persons in a position of trust or authority over the child. On a prima facie assessment, such a relationship was not demonstrated in the facts placed before the Court.
3. Only Basic Offence Under Section 3 POCSO Made Out:- In the absence of aggravating factors, the Court held that only an offence under Section 3 of the POCSO Act (penetrative sexual assault) would be attracted, punishable under Section 4.
Significance of Period Already Undergone in Custody
Under Section 4 of the POCSO Act (prior to the 2019 amendment), the minimum punishment was seven years’ imprisonment. The Court noted that Sengar had already undergone about 7 years and 5 months of incarceration.
Taking this into account, along with the prima facie legal findings, the Court held that the conditions for suspension of sentence were satisfied.
“In view of the above, this Court is of the prima facie view that… the Appellant cannot be brought into the ambit of ‘aggravated penetrative sexual assault’ under Section 5 of the POCSO Act
the Bench observed. What Suspension of Sentence Means and What It Does Not
It is crucial to understand that suspension of sentence is not an acquittal. The conviction has not been set aside. The High Court’s order only allows temporary release during the pendency of the appeal, based on legal infirmities noticed at a prima facie level. The appeal against conviction will still be heard on merits, where the prosecution and the survivor will have full opportunity to contest these findings.
Appearances in the Case
A large legal team appeared for Kuldeep Singh Sengar, led by Senior Advocates N Hariharan and Manish Vashisht.
The CBI was represented by Special Public Prosecutor Anubha Bhardwaj, while the complainant was represented by advocates including Mehmood Pracha. Delhi Commission for Women was represented by Advocate Urvi Mohan.
Conclusion
The Delhi High Court’s decision to suspend Kuldeep Singh Sengar’s sentence rests on a strict interpretation of penal statutes, particularly the scope of “aggravated” offences under the POCSO Act. The order underscores a settled principle of criminal law: enhanced punishment provisions must be applied strictly and only when statutory conditions are clearly satisfied. While the moral outrage surrounding the Unnao case remains, the Court’s reasoning highlights the distinction between public sentiment and legal standards especially at the appellate stage.
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