Prayagraj : Allahabad High Court (Prayagraj High Court) said that oral sex with minor is not considered as aggravated sexual assault under Protection of Children from Sexual Offences (POCSO) Act. It is considered as ‘penetrative sexual assault’ under Section 4 of POSCO Act. The court has also reduced the imprisonment of an accused from 10 years to 7 years.
The case pertains to a 10-year-old victim from Jhansi who was forced to perform oral sex by the accused. The lower court had convicted the accused under section 5/6 of the POCSO Act for causing ‘aggravated sexual assault’ while the high court said that the act only amounts to ‘penetrative sexual assault’ and therefore falls under section 4 of the POCSO act warranting only 7 years imprisonment.
A lower court in Jhansi in 2018 had convicted the man under Section 6 of the POCSO Act and sections 377 and 507 of the IPC, and sentenced him to 10 years imprisonment.
Challenging the conviction by the lower court, the accused had pleaded before the Allahabad High Court that the offence under section 6 of the POCSO Act was not made out against him.
Hearing the appeal filed by Sonu Kushwaha, the single judge bench of Justice Anil Kumar Ojha said, “From the perusal of the provisions of POCSO Act, it is clear that offence committed by appellant neither falls under Section 5/6 of POCSO Act nor under Section 9(M) of POCSO Act because there is ‘penetrative sexual assault’ in the present case.”
The crime does not fall in the category of ‘aggravated sexual assault’ or sexual assault. It comes in the category of ‘penetrative sexual assault’ which is punishable under Section 4 of the POCSO Act, he said.
“After going through the records and provisions of POCSO Act, I am of the considered opinion that the appellant should be punished under section 4 of POCSO Act because the act done by appellant falls in the category of penetrative sexual assault,” the judge said.
According to TOI report, Kushwaha had offered Rs 20 to the survivor to keep quiet. He threatened the child with dire consequences if anyone came to know about what happened. The trial court pronounced him guilty of aggravated sexual assault, as defined by Section 5 of the POSCO Act, and sentenced him to 10 years in prison.
The high court ruled that the offence couldn’t be categorized under sections 5 and 6 of the legislation as the act of oral sex was riot aggravated penetrative sexual assault”, as defined by the law. It said the quantum of punishment should therefore be determined by Section 4 of the act rather than Section 6.
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