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A Controversy has erupted around one of the recent orders of Allahabad High Court where the court delved into the question as to whether 'putting one's penis into the mouth of a child aged about 10 years and discharging semen therein' would fall under which section of Protection of Children from Sexual Offences Act (POCSO) Act.

The fuss around this decision arose as the bench decided to reduce the sentence awarded by the lower court to the convict from 10 years to 7 years. As such, Ignorance of law and misreporting drew conclusion that the court had considered convict's such an act a “lesser offence”. 

The said order has been widely misreported by mainstream media as Court's conclusion in this order is self-explanatory. The court reduced the sentence merely going by rules of strict interpretation.

Pursuant to the perusal of the specific provisions of the POCSO Act, the bench of Justice Anil Kumar Ojha had concluded that inserting penis into the mouth of a child comes in the category of 'penetrative sexual assault' which is punishable under Section 4 and not under section 6 of the POCSO Act.

Under the facts and circumstances of the case, the solitary point that had survived before the court for consideration was whether offence under Section 5/6 of POCSO Act or Section 9/10 POCSO Act was made out against the appellant from the evidence available on record.

Facts of the case were:

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. 

From the records, it was revealed that an FIR had been lodged against Kushwaha on the basis of a complaint by victim's father wherein it was alleged that one evening Kushwaha came to complainant’s house and took his 10-year-old son to the temple nearby and made the child perform oral sex on him for Rs. 20.

Appealing to the high court, Kushwaha's counsel had argued that he had been wrongly convicted under section 6 of the POCSO Act as the offence committed by Kushwaha would fall in the category of under Section 9(m) of POCSO Act i.e. aggravated sexual assault.

To reach its conclusion, the high court referred to the provisions of the POCSO Act as stated below.

Section 3 of the POCSO Act defines "penetrative sexual assault" and states that a person is said to commit it if he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person.

Section 4 of the POCSO Act provides punishment for penetrative sexual assault which is not less than seven years but which may extend to imprisonment for life with fine. 

Section 5 of the Act defines "aggravated penetrative sexual assault" and states that whoever, being a person of duty/trust commits penetrative sexual assault on a child or if there is repetitive penetrative sexual assault on a child or if the age of the victim is less than 12 years, then such an act would be "aggravated penetrative sexual assault" for which section 6 of the Act provides punishment. 

Section 6 of provides that the punishment for "aggravated penetrative sexual assault" will not be less than ten years, but it may extend to imprisonment for life with fine. 

Similarly, section 7 of the Act defines 'sexual assault' for which section 8 provides punishment, and section 9 defines 'aggravated sexual assault' for which section 10 provides punishment. 

Having referred to these sections of the Act, the court decided that Kushwaha's act would fall in the category of 'penetrative sexual assault' under section 3 as he wasn't a person of duty of trust to the child that would make him liable under section 5 

Accordingly, court held that as the court below had awarded minimum sentence provided under Section 6 of POCSO Act, therefore, it would be appropriate to award the minimum sentence to the appellant under Section 4 i.e. seven years of rigorous imprisonment.

However, it is to be noted, that court's decision could be called erroneous here as section 5(m) of the Act states that 'whoever commits penetrative sexual assault on a child below twelve years' would be considered to have committed "aggravated penetrative sexual assault" on the child and this aspect wasn't taken into account by the Court in its order despite victim's age being 10 years. 

But here it needs to be stressed that the court did not remark on its own discretion that Kushwaha's act was any lesser offence,  the court merely followed the rules of strict interpretation and held, 

"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."

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