The High Court has clarified that putting a penis inside the mouth of a child will attract the offence of 'penetrative sexual assault' punishable under Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act) and not 'aggravated penetrative sexual assault' or 'aggravated sexual assault' punishable under Sections 6 and 10 respectively.

The Court was adjudicating an appeal moved by one Sonu Kushwaha against a judgment of the Special Sessions Court which had convicted him under Section 377 (unnatural offences) and Section 506 (punishment for criminal intimidation) of the Indian Penal Code, and under Section 6 of the POCSO Act.

Background

The case against the appellant was that he came to the complainant’s house and took his son aged about 10 years to a temple at Hardaul, where he gave ₹20 to the appellant's son and directed him to suck his penis. Thereafter, the appellant inserted his penis in the child's mouth.

After asking the child where he got the money from, he revealed the entire story, adding that the appellant had threatened him not to tell the same to anyone.

A complaint was lodged against the appellant, and after the investigation and hearing of arguments, the Special Sessions Court convicted the appellant under Sections 377 and 506 of the IPC and Section 6 of the POCSO Act.

Aggrieved, the appellant preferred the current appeal before the High Court.

Key observation of the Court

Noting that the informant and the victim had supported the prosecution's story, the Court confirmed the finding of the Sessions Court with regard to the conviction.

The solitary question before the Court was whether the offence, made out against the appellant from the evidence available on record, falls under Sections 5 and 6 of the POCSO Act (on aggravated penetrative sexual assault) and Section 9 and 10 (aggravated sexual assault) or under Section 4 (penetrative sexual assault) POCSO Act.

After examining the specific provisions of the Act and the facts of the case, the Court ruled that the said case falls under the category of 'penetrative' sexual assault punishable under Section 4 of the POCSO Act 2012.

"...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 present 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," the Court observed.

Since 'penetrative sexual assault' under Section 4 is a lesser offence than 'aggravated penetrative sexual assault' under Section 6, the Court reduced the sentence of the appellant from 10 years of rigorous imprisonment to 7 years, and a fine of ₹5,000.