The Allahabad High Court has said that oral sex with a minor is not an heinous offence, and reduced the sentence of the accused convicted in the trial court from 10 years to 7 years.
A single-judge bench of Justice Anil Kumar Ojha passed this order while hearing a criminal appeal filed by Sonu Kushwaha.
The prosecution’s case is that complainant Dev Singh lodged an FIR against Sonu Kushwaha on March 26, 2016 at Chirgaon, District Jhansi stating that on March 22, 2016, at about 5 pm, Kushwaha came to the complainant’s house and took his son aged about 10 to a temple in Hardaul. There Kushwaha gave Rs 20 to the complainant’s son i.e. victim and told him to suck his penis. The appellant then put his penis in the mouth of the victim. Thereafter, the victim returned home with the Rs 20. At this, the complainant’s nephew Santosh asked the victim how he the Rs 20, then the victim recounted the incident. Kushwaha had also threatened the victim not to disclose the incident to anybody.
On the written report submitted by complainant, a case was registered against Kushwaha under Section 377, 506 IPC and 3/4 of POCSO Act, Police Station Chirgaon, District Jhansi.
Now, Kushwaha challenged the order dated August 24, 2018 passed by VIIIth Additional Sessions Judge/Special Judge, POCSO Act, Jhansi in Special Sessions Trial (State v. Sonu Kushwaha), arising out of Case under Section 377, 506 IPC & Section 6 of POCSO Act, Police Station Chirgaon, District Jhansi, whereby the judge convicted and sentenced him under Section 377 IPC with rigorous imprisonment for seven years and to pay fine of Rs 2000 and in default of payment of fine, three months additional imprisonment; under Section 506 IPC one year rigorous imprisonment and fine of Rs 1,000 and in default of payment of fine, one month additional imprisonment and under Section 6 of POCSO Act 10 years rigorous imprisonment and fine of Rs 5,000 and in default of payment of fine, three months additional imprisonment. All sentences have been ordered to run concurrently.
In the investigation, police collected the evidence and submitted a chargesheet against the appellant in Case under Section 377, 506 IPC and 3/4 of POCSO Act, PS Chirgaon, District Jhansi. The then Additional Sessions Judge/Fast Track Court-1, Jhansi charged the appellant under Section 377, 506 IPC and 5/6 of POCSO Act. Appellant denied the charges and claimed trial.
After the conclusion of the evidence, the statement of appellant under Section 313 CrPC was recorded. Kushwaha denied the evidence produced by prosecution and stated that witnesses have tendered false evidence owing to enmity.
After hearing the counsel for the parties, Additional Sessions Judge/Special Judge(POCSO Act), Jhansi convicted and sentenced the appellant as above.
Aggrieved by the judgment dated August 24, 2018 passed by VIIIth Additional Sessions Judge/Special Judge, POCSO Act, Jhansi, the appellant has preferred this appeal before the Court.
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Counsel for the appellant submitted that offence under Section 6 of POCSO Act is not made out against the appellant and he has been wrongly convicted under Section 6 of POCSO Act. He further argued that the offence committed by appellant falls in the category of under Section 9(M) of POCSO Act.
Additional Government Advocate opposed the above submission of the counsel for the appellant and contended that the appellant has been rightly convicted. Appeal has no force and the same deserves dismissal.
The Court noted that the 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.
Solitary point survives for consideration whether offence under Section 5/6 POCSO Act or Section 9/10 POCSO Act is made out against the appellant from the evidence available on record, the court said.
“The proved facts of the case are that the appellant put his penis into the mouth of the victim aged about 10 years and discharged semen therein. Now, the solitary point for consideration is that the offence committed by appellant falls in accordance with Section 3 to 10 of POCSO Act,”
-the court observed.
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The Court held,
“From the perusal of the provisions of POCSO Act, it is clear that offence committed by appellant neither falls under Section 5/6 of POCSO Act nor under Section 9(M) of POCSO Act because there is penetrative sexual assault in the case as appellant has put his penis into mouth of victim. 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. 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. Accordingly appellant Sonu Kushwaha should be and is convicted under Section 4 of POCSO Act in place of Section 6 of POCSO Act. The Court below has awarded the appellant to undergo 10 years rigorous imprisonment and fine of Rs. 5000 under Section 6 of POCSO Act and under Section 6 of POCSO Act, minimum sentence is 10 years which may extend to imprisonment for life whereas under Section 4 of POCSO Act minimum sentence is 7 years but which may extend to imprisonment for life also. Learned court below has awarded minimum sentence provided under Section 6 of POCSO Act and accordingly, it would be appropriate to award the sentence to appellant under Section 4 of POCSO Act, seven years of rigorous imprisonment which is minimum provided in that Section and fine of Rs 5,000, in default, three months additional simple imprisonment,”
-the Court observed while allowing the appeal.
It must be noted that the Supreme Court had recently overturned a POCSO judgment by the Bombay High Court’s Nagpur bench which had said skin-to-skin contact was necessary to attract POCSO provisions on the appeal made by Attorney General K.K. Venugopal.