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In the matter of Sonu Kushwaha Vs. State of U.P.; the Allahabad High Court on 18.11.2021 observed that putting the penis into the mouth of a 10-year-old boy 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 Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”)
Facts-
In March 2016, the father of a 10-year-old boy in Jhansi had alleged that the appellant/accused, one Sonu Khushwaha, took his son to a nearby temple where he gave him Rs 20 and asked him to perform oral sex on him.
Police charged the appellant/accused under sections 377 (unnatural offences) and 506 (criminal conspiracy) of the Indian Penal Code and Sections 3 (Penetrative sexual assault) and 4 (Punishment for Penetrative sexual assault) of the POCSO Act.
The Additional Sessions Court Judge eventually charged the accused under the same IPC sections and Sections 5 (Aggravated sexual assault) and 6 (Punishment for Aggravated sexual assault) of the POCSO Act. The appellant/accused was convicted and sentenced under Section 6 of POCSO Act for ten years rigorous imprisonment and fine of Rs. 5,000/-, along with other IPC sections
Aggrieved by the order, the appellant/accused moved the instant appeal before the High Court.
Observations of the High Court-
- From the perusal of the provisions of POCO Act, the offence committed by appellant/accused 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/accused 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.
- Accordingly, the court convicted Appellant/ accused Sonu Kushwaha under Section 4 of POCSO Act in place of Section 6 of POCSO Act.
- The Court partly allowed the appeal and sentenced the appellant/accused to undergo punishment under Section 4 of POCSO Act which will be seven years of rigorous imprisonment and fine of Rs. 5,000/-
– Vaishali Jain, Advocate & Associate – Child Safety at Work