Oral Sex Not Aggravated Sexual Assault In POCSO, Allahabad High Court Observes

Mumbai: The Allahabad High Court has reduced the sentence of an accused convicted of oral sex with a minor from 10 to 7 years saying the offence does not come under ‘aggravated sexual assault’.

The Court ruled this offence under section 4 of the Protection of Children from Sexual Offences (POCSO) Act as ‘penetrative sexual assault’.

“From the perusal of the provisions of P.O.C.S.O. Act, it is clear that offence committed by appellant neither falls under Section 5/6 of P.O.C.S.O Act nor under Section 9(M) of P.O.C.S.O. 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 a 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 P.O.C.S.O. Act,” the verdict read.

The case is of 2016 when Sri Dev Singh of Jhansi accused Kushwaha of making his 10-year-old son perform oral sex on him in return for Rs 10. A case was registered under sections 377, 506 of the Indian Penal Code and 3/4 of the POCSO Act.

The additional sessions judge court in Jhansi charged Kushwaha under 5/6 of the POCSO Act and a judgement was passed in 2018 but the accused appealed that a case was not made out under section 6 of the POCSO but under section 9(M) that dubs sexual assault committed on a child below 12 years as “aggravated sexual assault”, a milder offence that lays down jail term for a minimum of 5 and maximum 7 years.

“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 judge said while reducing the sentence of the convict.

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