'Oral Sex Isn't Aggravated Sexual Assault Under POCSO Act,' Says Allahabad HC

The court has controversially reduced the sentence of a man accused of sexually assaulting a 10-year-old boy.

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New Delhi: The Allahabad high court has reduced the jail sentence of a man convicted of sexually assaulting a child by controversially observing that oral sex does not fall within the category of ‘aggravated sexual assault’ under the Protection of Children from Sexual Offences Act.

A single-judge bench of Justice Anil Kumar Ojha brought the sentence of the convict down from 10 years to seven years.

In March, 2016, the father of a 10-year-old boy in Jhansi had alleged that the accused, one Sonu Khushwaha, took his son to a nearby temple, gave him Rs 20 and asked him to perform oral sex on him, Indian Express has reported.

Police had charged the accused under sections 377 (unnatural offences) and 506 (criminal conspiracy) of the Indian Penal Code and sections 3 and 4 of the POCSO Act.

The additional sessions court judge eventually charged the accused under the same IPC sections and sections 5 and 6 of the POCSO Act; the latter deal with ‘aggravated penetrative sexual assault’. It had sentenced the accused to 10 years’ rigorous imprisonment, the minimum sentence under Section 6 which may extend to life imprisonment, The Hindu has reported.

The accused had challenged the judgment in the high court, following which Justice Ojha said in an order that “it is clear that the offence committed by the appellant neither falls under Section 5/6 of the POCSO Act…”

“Putting 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,” the judge said.

Also read: Definition of ‘Sexual Assault’ in POCSO Must Be Looked at From Victim’s Perspective: SC

An analysis on The Quint has observed that the judge’s reading of the POCSO Act was flawed.

“As Kushwaha had inserted his penis in the boy’s mouth, this clearly fell within the definition of ‘penetrative sexual assault’ under the POCSO Act, ie insertion of penis in the private parts or mouth of a minor,” the article notes.

It also points out how, according to Section 5(m) of the POCSO Act, “any penetrative sexual assault upon a child below the age of twelve years is ‘aggravated penetrative sexual assault’.” As per Section 5(m), then, the minor was indeed subjected to aggravated sexual assault, the analysis finds.

POCSO judgments have recently invited criticism, especially in the case of the Bombay high court’s observation that groping of a minor without ‘skin to skin’ contact did not count as sexual assault under the Act. The Supreme Court recently overturned this judgment.

NCPCR wants UP to challenge order

The National Commission for Protection of Child Rights (NCPCR) has urged the Uttar Pradesh chief secretary to file an appeal against the Allahabad HC judgment, saying it is not as per the letter and spirit of the POCSO Act.

The commission is mandated under section 109 of the Juvenile Justice Act, 2015 and section 44 of the POCSO Act to monitor the implementation of the Acts. It said in a letter that an urgent appeal was necessitated in the case.

“It has been observed by the commission that the observations of the high court in the present matter for commutation of sentence of the accused from 10 years to seven years and the offence from aggravated penetrative sexual assault (sections 5 and 6) to penetrative sexual assault (sections 3 and 4) seems to be not as per the letter and spirit of the POCSO Act, 2012,” the letter said.

The commutation of sentence is observed by the commission to be prejudicial to the justice delivered to the victim in this case, and the commission feels that such necessary steps in the matter to file an urgent appeal against the judgement must be taken by the state, it added.

The commission has also requested the chief secretary to provide details of the minor so that it can provide help such as legal aid to the child.

Note: This article was originally published at 8:40 am and was updated at 6:05 pm with details of NCPCR’s letter.