Why are questions arising on the decision of the court in the case of child to oral sex
The Allahabad High Court did not consider oral sex with a minor boy as a heinous crime and reduced the punishment of the accused in this case from 10 years to seven years.
The Single Bench of Justice Anil Kumar Ojha has given this order after hearing the appeal filed in this case.
Earlier, the trial court had held the accused guilty under sections 377, 506 of the IPC and section 6 of the POCSO Act.
In this case, the Sessions Court/Special Court had sentenced the accused under Section 6 of the POCSO Act, in which the accused was sentenced to ten years in jail and a fine of Rs 5,000, against which the accused appealed in the High Court.
Law experts are expressing concern over the decision on this matter being insensitive and reducing the punishment.
- What’s the matter?
This case is from the year 2016. In this case, the prosecution said that the complainant had lodged an FIR against the accused in Jhansi district.
In this, the complainant said that Sonu Kushwaha came to his house and took his ten-year-old son to the temple. There Sonu Kushwaha gave 20 rupees to the complainant’s son and asked him for oral sex. When the son (victim) returned home with Rs 20, a relative of the complainant inquired about it. On this, the victim narrated the whole incident and said that Sonu Kushwaha had also threatened her not to tell this to anyone.
In this case, a case was registered against Sonu Kushwaha under sections 377, 506 of the IPC and sections three/four of the POCSO Act. In this case, the lower court had held Sonu Kushwaha guilty, after which the matter reached the Allahabad High Court.
The question before the court was that in which of the three to ten sections of the POCSO Act does this matter fall?
- Which act of POCSO?
This is because it was said on behalf of the lawyer of the accused that section 6 of the POCSO Act has not been invoked in this case and he has been wrongly held guilty under this section. Also, the guilt of the accused comes under section 9(m) of POCSO.
On this, the High Court was of the view that this case falling under the POCSO Act does not come under Section 5/6 nor Section 9(M) of this Act because in this case ‘penis was put in the mouth of the victim’. had gone.
The court said that this crime does not fall under the category of heinous sexual assault or aggravated sexual assault. It falls under the category of penetrative sexual assault, in which there is a provision of punishment under section 4 of the POCSO Act.
In this case, the judge said that after going through the record in this case and the provisions of the POCSO Act, the court is of the opinion that the accused should be punished under section 4 of the POCSO Act as the case of the accused falls under the category of penetrative sexual assault. Is. It is a less serious offense than aggravated sexual assault.
- displeasure at the verdict
On this decision, a section related to legal matters is expressing concern.
Advocate Kamini Jaiswal in the Supreme Court calls this a wrong and insensitive decision.
He says, “This case is completely covered under Section 9(M) of POCSO Act because here the child is less than 12 years. Wherein how can it be said that sexual and penetrative assault are different. It is completely It was penetrative assault and comes under this section.”
The POCSO Act, passed in 2012, sets out the definition, judicial procedure and punishment for offenses of sexual violence against minors.
According to the data of the National Crime Records Bureau or NCRB, 47,221 cases were reported under the POCSO Act across the country, in which the maximum number of 6898 cases were registered in the year 2020 in the state of Uttar Pradesh. After this Maharashtra and Madhya Pradesh were at number three.
Questions are also being raised here that the impact of such an incident on the mental state and life of a child should also be thought of.
Seema Kushwaha, who had been a lawyer in the Nirbhaya case, told the BBC that “if such decisions keep coming, people will lose confidence in the court. The way cases of sexual crimes against children are coming up, such a decision is a wrong one.” Will message.”
He says that the meaning of the POCSO Act taken by the court is absolutely wrong.
She says, “Section 3 of the POCSO Act clearly states that if any person enters the mouth or anus of a child, to any extent, or makes any other person get it done, then it is considered sexual assault. More provisions have been given in the section.
“Also, under the amendment made in section six in the year 2019, the provision of punishment in such cases has been increased from ten years to 20 years and in section four it has been increased from seven to ten years. And in this, at least There is also a provision for imprisonment of ten years or imprisonment for life.
At the same time, Supreme Court lawyer Pranay Maheshwari told the BBC that the Supreme Court should intervene on the implications of the sections of the POCSO Act. The commutation of punishment in this case is worrying.
Kamini Jaiswal, citing the example of the recent Supreme Court’s decision to dismiss the Bombay High Court’s ‘Skin to Skin Touch’ case, says that it is very difficult for the Supreme Court to take cognizance of every case and take a decision.
At the same time, she says that there is no shortage of law in India, but if it is not implemented properly, then what will be the effect of the justice system on the public should be seriously thought about.