'Oral Sex' With Minor Is Less offensive Says Allahabad High Court

The Allahabad high court reduced the sentence of a Jhansi man who was convicted back in the year 2016 of a forcing 10-year-old child to have oral sex with him.

The court ruled that the act constituted "penetrative sexual assault" under Section 4 of the Protection of Children from Sexual Offences (Pocso) Act and not "aggravated penetrative sexual assault" as defined under Section 6 of the Act.

Justice Anil Kumar cut down the sentence of a convict from 10 years to 7 years of imprisonment awarded by the trial court.

The court reasoned that the trial judge sentenced the man to a minimum of 10 years under section 6, and retained its principle even as it sentenced the Jhansi man under section a. which is punishable with a minimum jail of 7 years. Section 4 is the maximum punishment for imprisonment for life.

Sonu Kushwaha was guilty of sexually assaulting a 10 yr boy by forcing him to perform oral sex and also threatening him if he discloses the assault in front of anyone, victim's father stated that they were going to the temple and a man gave Rs 20 for oral sex.

The High Court ruled the man's offence did not fall under the law's definition of "aggravated penetrative sexual assault" - a minimum 10-year jail term. Instead, the court said it should be viewed as "penetrative sexual assault" - a lesser offence.

"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 fall in the category of penetrative sexual assault. Penetrative sexual assault being lesser offence from aggravated' penetrative sexual assault is legally permissible to convict the appellant therein," Justice Ojha stated.

The record reveals that informant and victim have supported the prosecution story and the evidence of prosecution witnesses are cogent, trustworthy, credible and probable, hence, finding with regard to conviction is confirmed, Solitary point survives for consideration whether an offence under Section 5/6 (of) POCSO or Section 9/10 is made out against the appellant from the evidence available on record," he added.

Judge also mentioned that it comes in the category of penetrative sexual assault, which is punishable under Section 4.

After going through the records and provisions of POCSO, I am of the considered opinion of the appellant should be punished under Section 4 because the act falls in the category of 'penetrative- sexual assault'.

POSCO defines aggravated penetrative sexual assault as the offence of penetrative sexual assault on a child below 12 years old.

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