The Kerala High Court has held that placing the penis on the vagina of a three-year-old girl, after removing her undergarment and causing her pain, is not a mere “touch” under Section 7 of the POCSO Act but amounts to penetrative sexual assault under Section 3. Justice A. Badharudeen confirmed the conviction of the accused but set aside the separate sentence under Section 376AB IPC, citing Section 42 of the POCSO Act.
Background
According to the prosecution, at about 2 pm on September 2, 2021, the accused, a neighbour of the three-year-old victim, committed penetrative sexual assault on her. The Fast Track Special Court, North Paravur, convicted him under Section 376AB IPC and Sections 3(a) r/w 4(2) and 5(m) r/w 6 of the POCSO Act.
He was sentenced to 20 years of rigorous imprisonment and a fine of ₹50,000 each under Section 4(2) POCSO, Section 6 POCSO and Section 376AB IPC, with the sentences to run concurrently. The accused challenged the conviction and sentence before the High Court.
Arguments
Advocate Safna P.S., appearing for the appellant, argued that the only direct evidence was that of the victim, who stated the accused had placed his penis on her vagina. She contended that mere placement does not amount to penetration and is akin to touching, so at most an offence under Section 7, punishable under Section 8 with a maximum of five years, was made out. She added that the doctor found no external injuries.
She relied on the Supreme Court’s decision in Laxman Jangde v. State of Chhattisgarh and the Kerala High Court Division Bench ruling in Kuttappan @ Babukuttan v. State of Kerala.
Public Prosecutor M.A. Shihab countered that the victim had deposed she felt pain and cried. He argued that the act was akin to the slightest degree of penetration on the labia majora or vulva, which satisfies the requirement of penetration. He relied on Raveendran V.S. v. Deputy Superintendent of Police and the Supreme Court’s decision in Nawabuddin v. State of Uttarakhand.
Kerala High Court on Penetrative Sexual Assault Under POCSO
The Court noted that the victim, examined at the age of five after a voir dire test, stated that her undergarment was removed and the accused placed his penis on her private part, after which she felt pain and cried. She stood firm in cross-examination. The doctor who examined her the same evening found the vaginal region patulous and opined that the findings were not inconsistent with the history of sexual assault.
The Court noted that in Laxman Jangde, the victim’s statements indicated only touching, and in Kuttappan, the victim deposed that the accused attempted insertion but it did not enter.
Drawing a distinction between “touching” and “placing”, the Court observed: “In fact, placing and touching are not synonymous. That is to say, a touch may not last long and a placement may last longer than a mere touch.”
Holding that the act could not be treated as a mere touch, the Court said: “If so, the overt act should not be viewed so lightly to hold that the same is nothing but a mere ‘touch’ as defined under Section 7 of the POCSO Act.”
The Court found that the act indicated either the slightest degree of penetration or manipulation of the vagina to cause penetration, which did not fully occur either due to the victim’s pain or her tender age. It concluded: “Thus, placing the penis on the vagina after removing the undergarment of the minor victim aged 3 years, which in turn caused pain to the victim which led the victim to cry, is nothing but slightest degree of penetration or manipulation of the vagina to cause penetration as defined under Section 3(a) to (d) of the POCSO Act.”
Sentence Under Section 376AB IPC Set Aside
On sentencing, the Court noted that the minimum punishment under Section 6 of the POCSO Act is 20 years. It held that the Special Judge had lost sight of Section 42 of the POCSO Act, which provides for punishment under whichever law prescribes the greater punishment. There was therefore no reason to impose a separate sentence under Section 376AB IPC after sentencing under Section 6 POCSO.
Outcome
The appeal was partly allowed. The conviction was confirmed, the sentence under Section 376AB IPC was set aside, and the sentences for the other offences were upheld. Since the appellant is already undergoing sentence, the Court said no further orders were required.
Case Title: Shaji v. State of Kerala
Case No.: Crl.A. No. 1265 of 2023
Bench: Justice A. Badharudeen
Date: October 13, 2026
