Allahabad High Court in a verdict yesterday has asserted that Oral Sex with a minor can’t be treated as an Aggravated Sexual Assault under section 6 of the POCSO Act which implicates strict punishment. The offence has been interpreted as a Penetrative Sexual Assault under section 4 of the same act, reducing the convict’s punishment from 10 to 7 years.

About the Offence and the Offender

The man in question, Kushwaha has been accused of forcing a 10-year-old boy from Jhansi to perform oral sex.

The Father of the victim Dev Singh filed a case alleging that the accused took the child to a temple in the Hardaul Town of Uttar Pradesh and forced him to perform the act. To intimidate further, a twenty rupee was given to the victim to prevent any exposé.

As the child returned, the adults enquired about the unaccounted twenty rupees, as a result of which he narrated the entire experience.


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The Verdict by the Trial Court

The Jhansi Court under the Special Sessions had convicted the accused under Section 377 (unnatural offences) and Section 506 (punishment for criminal intimidation) of the Indian Penal Code and Section 6 of the POCSO Act.

The Trial Court in Jhansi sentenced the convict,  under section 6 of the POCSO Act, with 10 years of rigorous imprisonment which could extend to life imprisonment and a 5000 Rupee fine.


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The Appeal at the High Court

However, Kushwaha appealed to the Allahabad High Court, to which the single bench judge, Justice Anil Kumar Ojha has responded by saying, “Putting penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into the category of penetrative sexual assault which is punishable under Section 4 of POCSO Act,”, brushing aside the findings by the Trial court.

“Penetrative sexual assault being lesser offence from aggravated penetrative sexual assault is legally permissible to convict the appellant [accused],” the High Court added.

Committing the “lesser offence” has reduced the imprisonment by three years but has retained the fine of 5000 INR.


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The Misleading Interpretation of Sexual Offence and the Supreme Court

A few months ago, the Supreme Court of India overruled the Bombay High Court’s verdict of “Skin to Skin” implications. The high court dismissed severe punishment in a case of groping a minor’s breasts stating, the offence did not imply a “skin to skin” touch as the victim had clothing on her skin at the time of the assault.

The Supreme Court, however, emphasized the sexual intent of the act, where the “skin to skin” implications were completely irrelevant.

Such misinterpretations of sexual offences often create hindrances in applying the strictest punishment in such horrendous acts of abuse.