Oral Sex With 10-Yr-Old Boy Not An 'Aggravated Sexual Assault' But 'Penetrative Sexual Assault' Under POCSO Act: Allahabad High Court

While dealing with the appeal of a POCSO Convict, accused of committing oral sex with a 10-year-old boy, the Allahabad High Court recently observed that putting the penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into the category of penetrative sexual assault which is punishable under Section 4 of the POCSO Act"

Pursuant to the perusal of the specific provisions of the POCSO Act, the Bench of Justice Anil Kumar Ojha observed that the Act [putting a penis inside the mouth of a child] falls under the category of 'penetrative' sexual assault punishable under Section 4 of the POCSO Act 2012. 

"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 as appellant has put his penis into mouth of victim. Putting penis into mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into category of penetrative sexual assault which is punishable under Section 4 of POCSO Act", the Court observed. 

Importantly, it may be noted that Section 5 of the POCSO Act outlines the scope of 'aggravated penetrative sexual assault', which the court observed, wasn't applicable in the instant case.

Further, it is significant to note that Section 5 (m) of the POCSO Act stipulates that 'whoever commits penetrative sexual assault on a child below twelve years' would be punishable with the offence of 'aggravated penetrative sexual assault', as punishable with greater punishment under Section 6 of the Act.

However, this aspect wasn't taken into account by the Court in its order, despite noting that the proven facts of the case are that the appellant had put his penis into the mouth of the victim aged about 10 years and discharged semen therein.

Background 

Essentially, the Court was adjudicating an appeal moved by one Sonu Kushwaha against a judgment of the Special Sessions Court which had convicted him under Section 377 (unnatural offences) and Section 506 (punishment for criminal intimidation) of the Indian Penal Code, and under Section 6 of the POCSO Act.

In the instant case, it was alleged that the appellant had come to the house of the complainant and thereafter had taken his son aged about 10 years to a temple at Hardaul, where he gave ₹20 to the appellant's son and directed him to suck his penis.

Thereafter, the appellant inserted his penis in the child's mouth. 

Subsequently, the complainant's nephew Santosh had asked the minor victim where he got Rs. 20 which is when the victim revealed the entire incident. The victim had also stated that the appellant had threatened him not to disclose the incident to anyone.

Thereafter, a complaint was lodged against the appellant and a Special Sessions Court convicted the appellant under Sections 377 and 506 of the IPC and Section 6 of the POCSO Act. Aggrieved by the order, the appellant moved the instant appeal before the High Court.

Observations 

The Court, at the outset, observed that the informant and the victim had supported the prosecution's story and accordingly the Court confirmed the finding of the Sessions Court with regards to the conviction.

However, the Court noted that the solitary question in consideration was whether the instant case falls under Sections 5 and 6 of the POCSO Act (on aggravated penetrative sexual assault) and Section 9 and 10 (aggravated sexual assault) or under Section 4 (penetrative sexual assault) POCSO Act.

It is important to note that the Court, in its order, didn't take into account Section 5 (m) of the POCSO Act, which stipulates that if the offence of 'penetrative sexual assault' on a child, who is below the age of twelve years, the same would be punishable with the offence of 'aggravated penetrative sexual assault' as per Section 6 of the Act.

Instead, the Court, in its order observed that the offence committed by the appellant neither falls under Section 5/6 of the POCSO Act nor under Section 9(M) of the Act because there is penetrative sexual assault in the present case as the appellant has put his penis into the mouth of the victim.

Putting penis into mouth falls into the category of 'penetrative sexual assault'  under Section 5 of the Act, the Court underscored. 

"After going through the records and provisions of P.O.C.S.O Act, I am of the considered opinion that the appellant should be punished under Section 4 of P.O.C.S.O Act because the act done by appellant falls in the category of penetrative sexual assault", the Court observed further. 

It may be noted that since 'penetrative sexual assault' under Section 4 is a lesser offence than 'aggravated penetrative sexual assault' under Section 6, the Court reduced the sentence of the appellant from 10 years of rigorous imprisonment to 7 years, and further imposed a fine of Rs 5,000.

Case Title: Sonu Kushwaha v. State of Uttar Pradesh

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