Allahabad HC finds oral sex with child 'less serious', reduces convict's sentence by three years

The bench of Justice Anil Kumar Ojha reduced Sonu Kushwaha's punishment from 10 to 7 years, observing that his crime is 'less serious'

In a significant judgement, the Allahabad High Court has sought to differentiate between the ''aggravated sexual assault'' and ''penetrative sexual assault'' on a child and ruled that the latter would not attract the more stringent sections of the Protection of Children from Sexual Offences Act 2012 (POCSO).

A single bench comprising Justice Anil Kumar Ojha made the observation while partly allowing a criminal appeal by one Sonu Kushwaha, who had been sentenced to ten-year imprisonment by a district court n Jhansi in UP finding him guilty of sexually assaulting a ten-year-old child after luring him with a promise to give him Rs. 20.

The Court reduced the sentence of the appellant from 10 years of rigorous imprisonment to 7 years, and a fine of Rs 5,000, since 'penetrative sexual assault' under Section 4 is a "lesser offence" than 'aggravated penetrative sexual assault' under Section 6.

''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 as the appellant had put his penis into the mouth of the 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 P.O.C.S.O. Act,'' the court said.

Section 6 of Protection of Children from Sexual Offences Act, 2012 : provides for punishment for aggravated penetrative sexual assault and says.''Whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life and shall also be liable to fine, or with death,''.

According to the prosecution the accused Sonu Kushwaha, a resident of Jhansi, had in March 2016, come to the complainant's house and took his son aged about 10 years in the temple. He gave Rs 20 to the complainant's son and urged the child to put his penis in his mouth. The child, upon being questioned by his father, about the money, narrated the incident.

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