Point of Law: Section 3(a) of POCSO Act, the applicant has committed penetrative sexual assault with the prosecutrix and as per Section 4(2) of POCSO Act, if any person commits penetrative sexual assault on a child below sixteen years of age shall be punishable with imprisonment for a term which shall not be less than twenty years, but may extend to imprisonment for life.

JUDGMENT :

RAJESH SINGH CHAUHAN, J.

1. Heard Sri B.M. Sahai, assisted by Sri Pawan Kumar Singh, learned counsel for the applicant, Sri Rajeev Kumar Verma, learned AGA and Sri Sudhir Kumar Srivastava, learned counsel for the complainant.

2. Learned counsel for the applicant has submitted that the present applicant is in jail since 01.09.2017 in Case Crime No. 410 of 2017, under Section 376 IPC and Sections 3/4 POCSO Act, Police Station Vikas Nagar, District Lucknow. He has further submitted that the present applicant has been falsely implicated in the case as he has not committed any offence as alleged. As per the prosecution story so narrated in the FIR, the present applicant has made oral sex with the daughter of the complainant/ informant, who is aged about eight years. As per the FIR, when the daughter of the complainant was vomiting after meal, the complainant asked about the reason for vomiting, then she told that the present applicant has made oral sex with her.

3. Sri Sahai has submitted that the entire prosecution story is false and concocted inasmuch as the family of the complainant was tenant of the present applicant and when the present applicant had told the complainant to vacate his house, this false story was created.

4. Sri Sahai has drawn attention of this Court towards Annexure No. RA-1 of the Rejoinder Affidavit, which is a typed statement of PW-2, mother of the victim, wherein she has stated that her husband along with her daughter went to the police station to lodge the FIR but what has been written in the FIR was not known to her as she was not informed about the narration of the FIR. He has also drawn attention of this Court towards Annexure No. RA-2 of the Rejoinder Affidavit, which is an order dated 18.11.2021 passed by this Court in Criminal Appeal No. 5415 of 2018, Sonu Kushwaha vs. State of U.P. relying upon paras 17 and 21 thereof, which reads as under:

“17. From the perusal of the provisions of P.O.C.S.O. Act, it is clear that offence committed by appellant neither falls under Section 5/6 of P.O.C.S.O Act nor under Section 9(M) of P.O.C.S.O. Act because there is penetrative sexual assault in the present case as appellant has put his penis into mouth of victim. Putting 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 P.O.C.S.O. Act.

21. The court below has awarded the appellant to undergo 10 years rigorous imprisonment and fine of Rs. 5000/- under Section 6 of P.O.C.S.O. Act and under Section 6 of P.O.C.S.O. Act, minimum sentence is 10 years which may extend to imprisonment for life whereas under Section 4 of P.O.C.S.O. Act minimum sentence is 7 years but which may extend to imprisonment for life also. Learned court below has awarded minimum sentence provided under Section 6 of P.O.C.S.O. Act and accordingly, it would be appropriate to award the sentence to appellant under Section 4 of P.O.C.S.O. Act, seven years of rigorous imprisonment which is minimum provided in that Section and fine of Rs. 5,000/- in default, three months additional simple imprisonment.”

5. On the basis of aforesaid paras, Sri Sahai has tried to submit that in the present case, maximum sentence for the alleged offence committed may be seven years and the present applicant has already served about four years and seven months in jail, therefore, considering the period of incarceration, the present applicant may be released on bail.

6. Learned AGA has opposed the aforesaid prayer of Sri Sahai and has submitted that the offence in question is so heinous in nature, therefore, the present applicant may not be released on bail. He has drawn attention of this Court towards Para-15 F, i.e. details regarding sexual violence, of the medical examination report, which provides that penis was penetrated in the mouth of the victim. Learned AGA has submitted that since this is a case of oral sex so there might not be