Forced oral sex with child ‘lesser offence’: Allahabad HC reduces jail term

The high court reasoned that the trial judge sentenced the man to the minimum sentence of 10 years provided under Section 6, and retained this principle even as it sentenced the Jhansi man under Section 4 which is punishable by a minimum jail of 7 years.

The Allahabad high court has reduced the jail term of a Jhansi man convicted for forcing a 10-year-old child to have oral sex with him in 2016, ruling that such an act amounts to “penetrative sexual assault” under Section 4 of the Protection of Children from Sexual Offences (Pocso) Act and not in the category of “aggravated penetrative sexual assault” defined under Section 6 of the Act.

Allahabad high court judge Justice Anil Kumar Ojha accordingly reduced the sentence of the convict to seven years from 10 years of rigorous imprisonment awarded by the trial court. (Shutterstock/Representative use)

Justice Anil Kumar Ojha accordingly reduced the sentence of the convict to seven years from 10 years of rigorous imprisonment awarded by the trial court.

“After going through the records and provisions of POCSO Act, I am of the considered opinion that the appellant should be punished under Section 4 of POCSO Act because the act done by appellant falls in the category of penetrative sexual assault. Penetrative sexual assault being lesser offence from aggravated penetrative sexual assault is legally permissible to convict the appellant therein,” justice Ojha ruled.

The high court reasoned that the trial judge sentenced the man to the minimum sentence of 10 years provided under Section 6, and retained this principle even as it sentenced the Jhansi man under Section 4 which is punishable by a minimum jail of 7 years.

The maximum punishment under Section 4 is imprisonment for life.

According to the boy’s father, the convict Sonu Kushwaha went to the complainant’s house in March 2016 and took out his son telling him that they were going to a temple. Once there, the man gave the child ₹20 for oral sex. When the child returned with the money, his family asked him about the money. The child told them about the abuse.

Based on the FIR filed four days after the incident, a case was registered under Section 377 (carnal intercourse against the order of nature) and 506 (criminal intimidation) of the Indian Penal Code and section 3 and 4 of the Pocso Act. The court, after hearing parties concerned, said that the offence committed by the appellant does not fall under Section 5 and 6 of the Pocso Act because there was penetrative sexual assault as the appellant had forced the victim to have oral sex with him.