Allahabad HC has failed to read section 5 of the POCSO Act: Vrinda Grover

The Allahabad High Court recently lowered the penalty imposed by the Special Sessions Court on a convict found guilty of having oral sex with a 10yearold childThe singlejudge bench of Justice Anil Kumar Ojha reduced Sonu Kushwahas punishment from 10 years to 7 years observing that the crime committed by him is less seriousrsquoldquoPutting penis into mouth does not fall in the category of aggravated sexual assault or sexual assault It comes into category of penetrative sexual assault which is punishable under Section 4 of POCSO Actrdquo the Court observed While the accused remains convicted the reduced punishment caused outrage among sections of people who expressed concerns on social mediaFactchecking both the Allahabad High Court verdict as well as the public interpretation of it Delhibased human rights lawyer Vrinda Grover says the courtrsquos reading of the POSCO law is wrong and that social media commentators on the other hand were reacting without reading the judgment in fullHere are edited excerpts from her interview with MiddaycomIs the recent Allahabad HC judgment where the sentence of a convict was reduced legally soundThis is a case where a 10yearold boy was forced The accused put his penis into the mouth of a 10yearold boy and he also ejaculated The trial court convicted him for aggravated penetrative sexual assault The HC says this is not a case of aggravated penetrative sexual assault it is only a case of penetrative sexual assault So the man continues to be convicted he is not being acquittedAccording to me the Allahabad HCrsquos reading of the POCSO law is wrong Section 3 of the POCSO laws defines the offence of penetrative sexual assault which includes putting the penis in the mouth in the anus or any other body part It is an offence under penetrative sexual assault which is punished under Section 4 of POCSO Then Section 5 where they talk about aggravated sexual assault it does not define any act but defines in which circumstances an act will become aggravated sexual assault So the act will remain the same which will be putting the penis in the mouth or anus or other body part These are coercive circumstances where the power of the perpetrator is even greater over the victim Section 5 m says that if the victim is under 12 years of age if the child with whom the penetrative sexual assault is committed is under 12 years of age then this will be the case of aggravated penetrative sexual assault which is punishable under Section 6 The thing that changes between section 6 and section 4 is the mandatory minimum sentence is higher under section 6 and a little lower under section 4The case in question is a case of aggravated penetrative sexual assault because the age of the boy is 10 years To my mind the Allahabad HC has misread the POCSO law The law under section 5 does not say a new act has to be committed it says in what circumstances One of the circumstances is the victim being under 12 years of age and so the Allahabad HCrsquos verdict in my opinion is erroneousThe case in question is a case of aggravated penetrative sexual assault because the age of the boy is 10 years says Vrinda GroverIs it right to say that the judge has made an observation that ldquooral sexrdquo with a minor is a ldquoless seriousrdquo offence that penetrationThe judge has not made an observation he has passed an order I think the order has not been read He has convicted him he has not said this is not a crime so it is really up to the media to ensure that the correct information about the judgment and the law is relayed to the public Unfortunately in the world of social media and Twitter now it is being said that the judge has said that nothing has happened Thatrsquos not correct The judge has convicted him for a substantial period of years The law says it is even more coercive therefore it should be taken up differently However it is up to the media to communicate both the law and the judgment correctly If any wrong message is going out it is because we are not reading the judgmentWhere does this judgment stand visagravevis SC quashing the recent Bombay HC judgment which said lsquoskintoskinrsquo contact was necessary for constituting sexual assault against childrenI donrsquot think the two can be equated Theycan only be equated to the extent that the court is not reading the POCSO Act clearly Not understanding that the POCSO Act was made to protect children and therefore they should give effect to the words of the statute a case was filed in the name of the Attorney General against the lsquoskintoskinrsquo judgment The AG has filed and the Supreme Court has given a very clear verdict saying that please understand the objective of POCSO it is to protect children from sexual abuse and understand the effect on their psyche emotional growth etc It is also saying the courts should understand the POCSO law and give meaning and effect to the words of the POCSO Act Here again we see that the Allahabad HC has failed to read the section 5 of the POCSO Act which describes the greater coercive circumstances so the law says if the child is not just a minor but very young therefore under the age of 12 the impact on the vulnerability of the child is even greaterAlso ReadBombay HC confirms death penalty to man accused of raping killing threeyearold girl