A single-judge bench of the Allahabad High Court has partly allowed an attraction by a person convicted underneath the stringent POCSO Act by a decrease court docket of sexual assault on a 10-year-old baby.
The High Court dominated the person’s offence didn’t fall underneath the legislation’s definition of “aggravated penetrative sexual assault” – a minimal 10-year jail time period. Instead, the court docket stated it needs to be considered as “penetrative sexual assault” – a lesser offence that carries a minimal seven-year jail time period.
The ruling successfully lowered the person’s conviction from 10 years to seven.
In August 2018 a court docket in UP’s Jhansi district discovered Sonu Kushwaha responsible of sexually assaulting a 10-year-old boy by forcing him to carry out oral intercourse, and threatening him if he disclosed the assault.
Kushwaha was discovered responsible underneath Section 6 of POCSO, and sections 377 (“…carnal intercourse against the order of nature…”) and 506 (“… offence of criminal intimidation…”) of the IPC. He was sentenced to 10 years of rigorous imprisonment however appealed his conviction earlier than the High Court.
Justice Anil Kumar Ojha of the Allahabad High Court handed his order on November 18, during which he upheld the conviction however questioned which part of POCSO could be relevant.
“Perusal of the record reveals that 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,” he stated.
“Solitary point survives for consideration whether offence under Section 5/6 (of) POCSO or Section 9/10 is made out against the appellant from the evidence available on record,” he added.
The choose outlined the varied related sections after which dominated the offence fell underneath Section 4.
“From perusal of provisions of POCSO Act, it is clear the offence… neither falls under Section 5/6 nor under Section 9(M)… because there is penetrative sexual assault in the present case as appellant has put his penis into mouth of victim,” Justice Ojha stated.
Justice Ojha stated “putting the penis into the mouth does not fall into the category of ‘aggravated sexual assault’ or ‘sexual assault'”.
“It comes in the category of penetrative sexual assault, which is punishable under Section 4. After going through the records and provisions of POCSO, I am of the considered opinion the appellant should be punished under Section 4 because the act falls in the category of ‘penetrative sexual assault’,” he stated.
However, Section 5(M) of POCSO defines ‘aggravated penetrative sexual assault’ because the offence of ‘penetrative sexual assault’ on a toddler beneath 12 years previous.
Justice Ojha’s judgement information the sufferer’s age on the time of the crime to be “about 10 years”. It is just not clear then, why the better offences of Sections 5 and 6 of POCSO act don’t apply on this case.