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Dealing with a criminal appeal, the Allahabad High Court recently clarified that inserting penis into the mouth of a child comes in the category of 'penetrative sexual assault' which is punishable under Section 4 of Protection of Children from Sexual Offences Act (POCSO) Act and not under Section 6 of the Act.

The bench of Justice Anil Kumar Ojha, therefore, reduced the sentence awarded by the lower court to the appellant from 10 years to 7 years. 

The bench was examining as to whether putting penis into the mouth of the victim and discharging semen therein, will fall under the purview of Section 5/6 or Section 9/10 POCSO Act. The court concluded that such an act would not come under the purview of any of the two sections but it will be covered by section 4 of the Act. Accordingly, court partly allowed the appeal.

One Sonu Kushwaha had filed the criminal appeal against the judgment passed by Additional Sessions Judge/Special Judge, POCSO Act, Jhansi whereby Kushwaha had been convicted and sentenced under Section 377 IPC with rigorous imprisonment for seven years with fine, under Section 506 IPC for one year rigorous imprisonment with fine and under Section 6 of POCSO Act for ten years rigorous impairment and fine. 

Kushwaha's contention was that he had been wrongly convicted under Section 6 (Punishment for aggravated penetrative sexual assault) of POCSO Act as no offence was made out against him under this section.

From the records, it was revealed that an FIR had been lodged against Kushwaha on the basis of a complaint by Sri Dev Singh wherein it was alleged that on March 22, 2016 at about 05:00 hours in the evening, Kushwaha came to the complainant’s house and took his 10-year-old son to the temple at nearby and made the child perform the act for Rs. 20.

The incident came to light when upon returning home, the victim child was enquired by one of his cousins about the money and the child disclosed the whole incident. The child also told that Kushwaha had also threatened him not to disclose the incident to anybody.

Thereafter, a case was registered against Kushwaha under Section 377, 506 IPC and 3/4 of POCSO Act, PS Chirgaon, District Jhansi and following that the Additional Sessions Judge/Special Judge (POCSO Act), Jhansi had convicted and sentenced Kushwaha as above stated.

Hearing the appeal, the High Court concluded that as the evidence of prosecution witnesses was cogent, trustworthy, credible, and probable, the Special Court's finding with regard to conviction was confirmed.

However, the Court stressed that Kushwaha had put his penis into the mouth of victim so there was penetrative sexual assault and therefore he should have been convicted under Section 4 of the POCSO Act. 

Therefore, pointing out that penetrative sexual assault is a lesser offence than aggravated penetrative sexual assault and that it was legally permissible to convict Kushwaha therein, the Court reduced Kushwaha's punishment. 

The Court said, "the court below has awarded minimum sentence provided under Section 6 of POCSO Act and accordingly, it would be appropriate to award the sentence to the appellant under Section 4 of POCSO Act, seven years of rigorous imprisonment which is the minimum provided in that Section and a fine of Rs. Rs. 5,000/-, in default, alongwith three months additional simple imprisonment."

Cause Title: Sonu Kushwaha v. State of UP and Ors