Oral Sex With Minor Not ‘Aggravated Sexual Assault’ Under POCSO: Allahabad High Court

Allahabad: Reducing jail term of an accused from 10 to 7 years, the Allahabad High Court said that Oral sex with a minor does not come under ‘aggravated sexual assault’ under the Protection of Children from Sexual Offences (POCSO) Act. The case pertains to a 10-year-old victim from Jhansi who was forced to perform oral sex by the accused.

In 2016, an FIR was filed in the Jhansi district against a man accusing him of having “oral sex” with the 10-year-old son of the complainant in exchange for Rs 20. The boy had also been threatened with dire consequences if he told anybody about the incident.

The lower court had convicted the accused under section 5/6 of the POCSO Act for causing ‘aggravated sexual assault’ while the high court said that the act only amounts to ‘penetrative sexual assault’ and therefore falls under section 4 of the POCSO act warranting only 7 years imprisonment.

It may be noted that Section 5 of the POCSO Act outlines the scope of ‘aggravated penetrative sexual assault’, which the court observed, wasn’t applicable in the instant case.

Further, it is significant to note that Section 5 (m) of the POCSO Act stipulates that ‘whoever commits penetrative sexual assault on a child below twelve years’ would be punishable with the offence of ‘aggravated penetrative sexual assault’, as punishable with greater punishment under Section 6 of the Act.

The Court reduced the sentence of the appellant from 10 years of rigorous imprisonment to 7 years, and a fine of Rs 5,000, since ‘penetrative sexual assault’ under Section 4 is a “lesser offence” than ‘aggravated penetrative sexual assault’ under Section 6.

“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 present case as the appellant had put his penis into the mouth of the 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 P.O.C.S.O. Act,” the court said.