POCSO shocker

News: Recently, the Allahabad High Court had ruled that a penetrative sexual assault on a 10-year-old boy did not fall under the stringent POCSO Act’s definition of aggravated penetrative sexual assault.

The Allahabad High Court lowered the sentence of a man who was convicted of forcing a 10-year-old boy to perform oral sex.

The ruling has been handed down without due regard to the laws and facts.

What was Allahabad High Court’s view?

The Court agreed that it was a “penetrative sexual assault” as defined by the POCSO Act, as the accused had put his member into the victim’s mouth.

However, the court opined that, it did not amount to “aggravated penetrative sexual assault”, a crime punishable with a minimum prison term of 10 years that can go up to life.

Instead, it was punishable under Section 4 of POCSO, which prescribes a minimum 7 years. Accordingly, the court reduced the trial court sentence of 10 years in jail to 7 years.

Must Read: POCSO Act and associated issues – Explained
Why the High Court’s judgement is erroneous?

The High Court failed to note that a sexual offence can take the character of aggravated form of sexual offence in certain circumstances under POCSO.

Following sections of POCSO Act, contain provisions regarding ‘aggravated penetrative sexual assault’,

Section 5

i). When the offender is a police officer, a member of the armed forces, a public servant or someone on the staff of a jail, remand home, hospital, educational or religious institution, or any place of custody or care and protection.

ii). When the crime involves a group of offenders, or is done repeatedly, or when it pertains to the use of deadly weapons or causes grievous harm or injury, or leads to physical or mental incapacitation, pregnancy, or disease.

Section 5(m)

iii). Whoever commits penetrative sexual assault on a child below 12 years.

Further, the court failed to consider the fact that the child was about 10 years old when the offence took place.

What is the way forward?

First, the verdict in Sonu Kushwaha vs State of U.P. is a fit case for review, as it seems to be based on an error of law.

Second, quashing Bombay HC’s judgement in Satish v State of Maharashtra case, SC clearly stated that a narrow interpretation of POCSO provisions would defeat the very purpose of the act. This judgement cautioning against diluting the gravity of an offence against a child by ignoring the plain meaning of POCSO’s provisions needs to be adhered.

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