POCSO | Putting penis into mouth will fall under which category – Aggravated Sexual Assault or Penetrative Sexual Assault? All HC answers

Allahabad High Court: Anil Kumar Ojha, J., while addressing a matter of child sexual assault, expressed that,

Putting penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into the category of penetrative sexual assault which is punishable under Section 4 of POCSO Act. 

Lower Court’s decision whereby the appellant was convicted and sentenced under Sections 377, 506 of Penal Code, 1860 and under Section 6 of the POCSO Act was challenged.

Prosecution’s Case

Complainant lodged an FIR against the appellant stating therein that the appellant came to complainant’s house and took his son aged about 10 years in a temple and gave Rs 20 to the complainant’s son and said to suck his penis.

Further, the appellant put his penis into the mouth of the victim and thereafter, the victim came to the house having that Rs 20. On being asked about the said money, the victim told the entire incident.

Analysis, Law and Decision

It was noted that the informant and victim supported the prosecution story, and the evidence of prosecution witnesses were cogent, trustworthy, credible and probable, hence finding with regard to conviction was confirmed.

Whether offence under Section 5/6 POCSO Act or Section 9/10 POCSO Act was made out against the appellant?

Proved facts of the case were that the appellant had put his penis into the mouth of the victim aged about 10 years and discharged semen therein.  

Bench stated that the offence committed by the appellant would neither fall under Section 5/6 of the POCSO Act nor under Section 9(m) of the POCSO Act because there was penetrative sexual assault in the present matter as appellant had put his penis into the mouth of the victim.

The above-said act comes under the category of penetrative sexual assault punishable under Section 4 of the POCSO Act.

Therefore, High Court convicted the appellant under Section 4 of the POCSO in place of Section 6 of the POCSO Act.

In view of the above conclusion, the appeal was partly allowed. [Sonu Kushwaha v. State of U.P., 2021 SCC OnLine All 810, decided on 18-11-2021]

Advocates before the Court:

For the appellant: Anil Kumar Verma, Noor Muhammad, Yogesh Kumar Srivastava

For the Respondent: GA