Allahabad HC reduces jail term of man who sexually assaulted minor, terms it ‘lesser offence’

Penetrative sexual assault is defined in section 3 of the Pocso Act as penetration of the penis to any extent into the vagina, mouth, urethra or anus of the child and section 4 lays down minimum seven years jail time for such an offence that may be extended to life imprisonment and a fine. However, the same penetrative sexual assault when done on a child below 12 years is defined as “aggravated penetrative sexual assault” in section 5(M), attracting a rigorous imprisonment of minimum 10 years which may also extend to life term or even death. But Justice Anil Kumar Ojha’s judgement did not seem to reflect this.

The case goes back to 2016, when Sri Dev Singh of Jhansi accused Kushwaha of making his 10-year-old son perform oral sex on him in return for Rs 10. A case was registered under sections 377, 506 of the Indian Penal Code and 3/4 of Pocso Act. The additional sessions judge court in Jhansi charged Kushwaha under 5/6 of the Pocso Act and a judgement was passed in 2018 but the accused appealed that a case was not made out under section 6 of the Pocso but under section 9(M) that dubs sexual assault committed on a child below 12 years as “aggravated sexual assualt”, a milder offence that lays down jail term for minimum of 5 and maximum 7 years.

“The proved facts of the case are that the appellant put his penis into mouth of the victim aged about 10 years and discharged semen therein. Now, the solitary point for consideration is that the aforesaid offence committed by appellant falls in which Section of Pocso,” Justice Anil Kumar Ojha said in his recent verdict. But while he ruled out the appeal that the offence came under section 9(M), opining that it amounted to “penetrative sexual assault” as the accused put his penis into the mouth of the child, justice Ojha also overruled the lower court’s judgement that had charged him under section 5/6 for “aggravated penetrative sexual assault”.

“Penetrative sexual assault being lesser offence from aggravated pentrative sexual assault is legally permissible to convict the appellant therein,” the judge observed, reducing his term to seven years, which is the minimum jail time under section 4, that may be extended to life imprisonment and a fine.