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Here’s Why Allahabad HC Lowered Sentence Of Man Who Sexually Assaulted Minor

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Allahabad High Court’s single-judge bench partly allowed an appeal by a man who is convicted under the Protection of Children Against Sexual Crimes (POCSO) Act by a lower court for sexually assaulting a 10-year-old boy.

The man was earlier given a sentence of 10-year term but the court decided to lower his sentence on Tuesday.

Allahabad HC Lowers Sentence Of Man Convicted For Sexual Assault Of 10-Year-Old:

The High Court bench ruled that the offence committed by the convict does not fall under the POCSO Act’s definition, “aggravated penetrative sexual assault”. Instead of 10 years, the court viewed his offence as “penetrative sexual assault” – a lesser offence that carries a minimum seven-year jail term. The man has been given a jail term of seven years now.

Sexual Assault Case:

In Uttar Pradesh’s Jhansi district, the man named Sonu Kushwaha was found guilty of sexually assaulting a 10-year-old boy in August 2018. The convict reportedly forced the minor to perform oral sex and threatened him against disclosing the assault.

Kushwaha was found guilty under section 6 of POCSO and sections 377 (“…carnal intercourse against the order of nature…”) and 506 (“… offence of criminal intimidation…”) of the Indian Penal Code. He was sentenced to 10 years of rigorous imprisonment.  The new order by the Allahabad High Court was passed on November 18 in which the man’s conviction was upheld but the contention was–which POCSO section would be applied.
Justice Anil Kumar Ojha said, “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.”

“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 judge also defined various relevant sections and then gave the order that the man’s offence comes under section 4 of the act. The judge said, “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.” He said that “putting the penis into the mouth does not fall into the category of ‘aggravated sexual assault’ or ‘sexual assault'”

He added, “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’.”

However, Section 5(M) of POCSO defines ‘aggravated penetrative sexual assault’ as the offence of ‘penetrative sexual assault’ on a child below 12 years old.
Justice Ojha’s judgement records the victim’s age at the time of the crime to be “about 10 years”. It is not clear then, why the greater offences of Sections 5 and 6 of POCSO act do not apply in this case.


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