Allahabad High Court Lowers Sentence For Man Who Sexually Assaulted Minor

A single-judge bench of the Allahabad High Court has partly allowed an appeal by a man convicted under the stringent POCSO Act by a lower court of sexual assault on a 10-year-old child.

The High Court ruled the man's offence did not fall under the law's definition of "aggravated penetrative sexual assault" - a minimum 10-year jail term. Instead, the court said it should be viewed as "penetrative sexual assault" - a lesser offence that carries a minimum seven-year jail term.

The ruling effectively lowered the man's conviction from 10 years to seven.

In August 2018 a court in UP's Jhansi district found Sonu Kushwaha guilty of sexually assaulting a 10-year-old boy by forcing him to perform oral sex, and threatening him if he disclosed the assault.

Kushwaha was found guilty under Section 6 of POCSO, and sections 377 ("...carnal intercourse against the order of nature...") and 506 ("... offence of criminal intimidation...") of the IPC. He was sentenced to 10 years of rigorous imprisonment but appealed his conviction before the High Court.

Justice Anil Kumar Ojha of the Allahabad High Court passed his order on November 18, in which he upheld the conviction but questioned which section of POCSO would be applicable.

"Perusal of the record reveals that informant and victim have supported the prosecution story and the evidence of prosecution witnesses are cogent, trustworthy, credible and probable, hence, finding with regard to conviction is confirmed," he said.

"Solitary point survives for consideration whether offence under Section 5/6 (of) POCSO or Section 9/10 is made out against the appellant from the evidence available on record," he added.

The judge defined the various relevant sections and then ruled the offence fell under Section 4.

"From perusal of provisions of POCSO Act, it is clear the offence... neither falls under Section 5/6 nor under Section 9(M)... because there is penetrative sexual assault in the present case as appellant has put his penis into mouth of victim," Justice Ojha said.

Justice Ojha said "putting the penis into the mouth does not fall into the category of 'aggravated sexual assault' or 'sexual assault'".

"It comes in the category of penetrative sexual assault, which is punishable under Section 4. After going through the records and provisions of POCSO, I am of the considered opinion the appellant should be punished under Section 4 because the act falls in the category of 'penetrative sexual assault'," he said.

However, Section 5(M) of POCSO defines 'aggravated penetrative sexual assault' as the offence of 'penetrative sexual assault' on a child below 12 years old.

Justice Ojha's judgement records the victim's age at the time of the crime to be "about 10 years". It is not clear then, why the greater offences of Sections 5 and 6 of POCSO act do not apply in this case.