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Redefining Sexual Assault

The Allahabad High Court has reduced the jail sentence of a man convicted for sexually assaulting a child by controversially observing that oral sex does not fall within the category of “aggravated sexual assault” under POCSO.

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While giving its verdict on a petition filed in a child abuse case, the Allahabad High Court has stirred a legal hornet’s nest by declaring that oral sex with a minor is not a heinous offense and reducing the sentence of a man, convicted by the trial court, from 10 years to 7 years.

A single bench of Justice Anil Kumar Ojha passed the order while hearing a criminal appeal filed by petitioner Sonu Kushwaha.

Kushwaha had challenged an order given by a special sessions court in Jhansi wherein he was convicted under IPC Sections 377 (unnatural offences) and 506 (punishment for criminal intimidation) as well as Section 6 of the POCSO Act, 2012, and sentenced to rigorous imprisonment for ten years along with fine.

A resident of Jhansi district, Dev Singh, had lodged an FIR against Kushwaha, stating that the latter had come to his house and took his son, aged about 10 years, to a temple at Hardaul and there gave his son Rs 20 and asked the boy to suck his penis. Kushwaha then put his penis in the mouth of the boy. Thereafter, the boy returned to the house with Rs 20. On being asked where he got the money from, the boy related the entire incident. He also said that Kushwaha had threatened him not to disclose the incident to anybody.

After a written complaint was filed, a case was registered against Kushwaha under Sections 377 and 506 of the IPC and Section 3/4 of the POCSO Act at police station Chirgaon, district Jhansi. The case then went to court, and eventually, Additional Sessions Judge/Special Judge (POCSO Act) convicted and sentenced Kushwaha.

Aggrieved by the judgment, Kushwaha appealed before the Allahabad High Court. The counsel for Kushwaha argued that the offence was not applicable under Section 6 of the POCSO Act and he had been wrongly convicted under the Section. He further argued that the said offence committed by Kushwaha fell under Section 9(M) of the POCSO Act. The counsel for the state, however, argued that Kushwaha had been rightly convicted and the appeal had no merit and should be dismissed.

The High Court noted that all evidence submitted in the case against Kushwaha were cogent, trustworthy, credible, and hence, finding with regard to the conviction was confirmed. The solitary point for consideration was whether the offence under Section 5/6 of the POCSO Act or Section 9/10 of the POCSO Act could be made out against Kushwaha from the evidence available on record.

Also Read: FIR filed after 22 years: Madhya Pradesh High Court dismisses petition

The High 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 whether the offence committed by appellant falls in accordance with Section 3 to 10 of the POCSO Act.”

The High Court held that from the perusal of the provisions of the POCSO Act, it is clear that offence committed by appellant neither falls under Section 5/6 of the POCSO Act nor under Section 9(M) of the POCSO Act because there is penetrative sexual assault in the case as Kushwaha had put his penis into mouth of the victim (boy). Putting penis into mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes in the category of penetrative sexual assault which is punishable under Section 4 of the POCSO Act, the Court observed.

The judge said:

“After going through the records and provisions of the 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 a 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 judge ruled after allowing the appeal.

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Earlier, the Supreme Court had in a landmark decision, reversed the verdict of the Bombay High Court, which said that “skin to skin touch” is necessary for sexual harassment. A three-judge bench of Justices UU Lalit, Ravindra Bhatt and Bela Trivedi said that touching any part of the body in any way with “wrong intent” will amount to a case under the POCSO Act. The Supreme Court observed that it could not be said that touching the sensitive parts of a child with the intention of sexual harassment is not sexual abuse. If this is said, then the seriousness of the POCSO Act, made to protect children from sexual abuse, will end, the apex court noted.

The Nagpur Bench of the Bombay High Court had acquitted an accused of sexual harassment saying that touching or groping the private parts of a minor without skin-to-skin contact does not come under the POCSO Act. Attorney General KK Venugopal had filed a petition against this in the Supreme Court. The apex court set aside the Bombay High Court’s decision and sentenced the accused to three years’ imprisonment. Venugopal had earlier told the apex court that the controversial Bombay High Court judgment would set a “dangerous and degrading precedent” and needed to be reversed.

—By Adarsh Patel and India Legal News Service

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