CRITICAL ANALYSIS OF RECENT ALLAHABAD HIGH COURT JUDGMENT
Author: Simran Goel, IV year of B.A.,LL.B. from Geeta Institute of Law
Co-author: Ansh Tyagi, IV year of B.A.,LL.B. from Geeta Institute of Law
This article critically analyzes the recent judgment delivered by the single bench Justice Anil Kumar Ojha of Allahabad High Court on 18 November 2021. In the case Sonu Kushwaha v. State of U.P, the court held that oral sex with a minor is not aggravated sexual assault and only a lesser offence.
Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted to protect children from offences of Sexual Assault, Sexual harassment & Pornography with due regard for safeguarding the interest and well being of children. This Act is gender-neutral whereas the Indian Penal Code on other hand acknowledges that men can’t be sexually assaulted. According to the POCSO Act, any person below the age of 18 years comes under the purview of the word “child”. POSCO Act was amended in 2019 to address the need for Stringent measures required to deter the rising trend of Child Sexual Abuse in the Country.
OVERVIEW OF CONTROVERSIAL JUDGMENT OF ALLAHABAD HIGH COURT
In a recent judgment of Sonu Kushwaha v. State of U.P, Single Judge Bench of Allahabad High Court concluded that Oral sex with a minor is a penetrative Sexual Assault not an Aggravated Form of Sexual Assault. Oral sex is a lesser form of Offence as compared to Aggravated Sexual Assault.
“From the perusal of the provisions of the POCSO Act, it is clear that the offence committed by the appellant neither falls under Section 5/6 of the POCSO Act nor Section 9(M) of the POCSO Act because there is penetrative sexual assault in the present case as the appellant has put his penis into the mouth of the victim. Putting a 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 the POCSO Act.” 
FACTS OF CASE
Sri Dev Singh, Complainant lodged F.I.R against Appellant Sonu Kushwaha on 26 March 2016 at Chirgaon, District Jhansi stating that on 22 march 2016 at 5:00 hours in the evening, Sonu Kushwaha came to Complainant’s house and took his son aged about 10 years in the temple at Hardaul.
Appellant Sonu Kushwaha gave Rs. 20 to Complainant’s son i.e., victim and asked him to suck his penis. He put his penis into the mouth of the victim.
When the victim came to the house having that Rs.20, He was asked from where he got Rs.20, then the victim told the entire happening occurred with him. Appellant Sonu Kushwaha also threatened the victim not to disclose the incident to anybody.
Case was registered against the appellant in Case Crime No. 167 of 2016, under Section 377, Section 506 IPC and Section 3,4 of POCSO Act, Police Station, Chirgaon, District Jhansi.
After hearing the learned Counsel for Parties, Learned Additional Session Judge/ Special Judge (POCSO Act), Jhansi has convicted and Sentenced the Appellant rigorous Imprisonment for the term of 10 years and fine of Rs. 5000 on 24 August 2018.
Aggrieved by aforesaid judgment dated 24 August 2018 passed by VIIIth Additional Session Judge / Special Judge, POCSO Act, Jhansi. Appellant Sonu Kushwaha preferred this appeal before Allahabad High Court.
Perusal of record reveals that informant and victim had supported the prosecution theory and evidence of prosecution witnesses are trustworthy, cogent, credible and probable. Hence conviction of the Appellant is confirmed in regards to the finding of evidence against him.
Whether Offence committed by Appellant falls under Section 5/6 of POCSO Act or Section 9/10 of POCSO Act based on the evidence available on record?
ARGUMENTS OF APPELLANT
Learned Counsel for Appellant submitted that Appellant has been wrongly convicted under Section 6 of POCSO Act, Jhansi. He argued that the offence committed by the Appellant falls in the category of Section 9(M) Of the POCSO Act.
ARGUMENT OF RESPONDENT
Learned A.G.A opposed the above submission of learned counsel for Appellant. He contended that Appellant has been rightly convicted. This Appeal has no force and it deserves dismissal.
Appellant put his penis into the mouth of Victim aged about 10 years and discharged semen therein are the proven facts of the case. According to the Provision of POCSO Act, it is clear that the offence neither falls under Section 5, Section 6 of POCSO Act nor under Section 9(M) of POCSO Act. The offence committed by the appellant in the present case comes under the definition of Penetrative Sexual Assault under Section 4 of the POSCO Act, as Sonu Kushwaha had put his penis into the mouth of the victim.
Penetrative Sexual Assault is a lesser offence than Aggravated Penetrative Sexual Assault. Hence, the Appellant is awarded a minimum sentence of 7 years of Rigorous Imprisonment and a fine of Rs. 5000 under Section 4 of the POCSO Act. In case of default of payment of fine three months additional Imprisonment. 
Firstly, the Appellant has been convicted under Section 5/6 of POCSO Act by VIIIth Additional Session Judge / Special Judge, POCSO Act, Jhansi. In my opinion, he has been rightly convicted under Section 5/6 of the POCSO Act. His offence can be tried under the ambit of Section 5(p) of the POCSO Act. Accused Sonu Kushwaha takes victim from his home to temple so definitely he comes under the purview of trust and authority of Child. Secondly, judgment can be criticized on the reduction of rigorous Imprisonment terms from 10 years to 7 years. POCSO Act, 2012 was amended in 2019 where Subsection (2) has been inserted under Section 4 of POCSO Amendment Act, 2019 and the term for rigorous imprisonment has been increased from 7 yrs to 10 yrs. Such amendment in POSCO Act was done for the safety and well being of the child with due regard to deter the rising trend of child sexual abuse in the country. Increasing of Imprisonment term from 7 yrs to 10 yrs implies that penetrative sexual assault can’t be considered a lesser offence as compared to aggravated penetrative sexual assault. This particular judgment can serve as a bad example which in future can lead to an increase of such forms of crime. This criticism can be supported by the judgement of Bombay High Court, Where the High Court held that evidence laid in the instant case undoubtedly justifies the finding of penetrative sexual assault within the meaning of clause (b) of Section 3 of the POSCO Act, 2012. The act also falls within the dragnet of clause (b) of Section 375 of the Penal Code which defines the offence of rape, as substituted by the Criminal Law (Amendment) Act, 2013. Therefore, a sentence of rigorous imprisonment of 10 years, which is the minimum prescribed by Section 6 of the POCSO Act, would meet the ends of justice. Impugned Judgment of Conviction for the offences punishable under Sections 6 and 10 of POCSO Act, 2012 and Section 376 (2) of IPC stands confirmed.
Fazal Mehmud Jilani Dafedar v. State of Maharashtra, (2020 SCC Bom 3380),