Oral Sex with Minor not sexual assault but a penetrative sexual assault, says Allahabad Court


Source: The Leaflet


The Allahabad High Court reduced an accused's sentence from ten to seven years, ruling that oral sex with a juvenile does not qualify as "aggravated sexual assault" under the Protection of Children from Sexual Offenses (POCSO) Act.


The case involves a 10-year-old Jhansi victim who was compelled to engage in oral sex by the accused. The lower court had found the accused guilty of causing 'aggravated sexual assault' under section 5/6 of the POCSO Act, but the high court ruled that the act only amounts to 'penetrative sexual assault' and thus falls under section 4 of the POCSO Act, which carries a sentence of only 7 years in prison.


In 2018, a lower court in Jhansi found the man guilty of violating Section 6 of the POCSO Act, as well as sections 377 and 507 of the IPC, and sentenced him to ten years in prison.


"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," Justice Anil Kumar Ojha observed. The accused had claimed before the Allahabad High Court, challenging the lower court's conviction, that the offence under section 6 of the POCSO Act had not been made against him.


The crime isn't classified as "aggravated sexual assault" or "sexual assault." According to him, it falls within the heading of 'penetrative sexual assault,' which is punished under Section 4 of the POCSO Act.


"After going through the records and provisions of 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," the judge said.

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