The Kerala High Court has held that applying the mouth to a child’s private parts with sexual intent constitutes “penetrative sexual assault” under Section 3(d) of the Protection of Children from Sexual Offences (POCSO) Act, clarifying that the law does not mandate oral sex or deeper penetration. While dismissing a criminal appeal filed by a 61-year-old man convicted of sexually assaulting a 14-and-a-half-year-old boy and giving him intoxicants, a single bench of Justice A. Badharudeen confirmed the trial court’s verdict sentencing the convict to 20 years of rigorous imprisonment.
Background of the Case
According to the prosecution, on January 26, 2020, at around 7:00 PM, the appellant took the victim boy inside his shop room at Kallanmodi in Mezhuveli Panchayat. The accused forcefully provided the boy with beer and a ganja beedi to smoke. Thereafter, the accused removed the boy’s clothes and subjected him to aggravated sexual assault twice on the same day by kissing his private part. The accused also gave ill advice to the boy to quarrel with his parents.
Following unusual behavioral changes and an incident where the boy pelted a stone at his father under the influence of substances, the child was taken to a Childline counselor (PW2) and later narrated the incident. The victim’s statement was recorded, and an FIR was registered under Sections 4 read with 3(d), 7 read with 8, and 6 read with 5(l) of the POCSO Act, Section 377 of the Indian Penal Code (IPC), and Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
The Fast Track Special Court, Pathanamthitta, in SC No. 260/2020, convicted the accused under Sections 6 read with 5(l) and 10 read with 9(l) of the POCSO Act, as well as Section 77 of the JJ Act. He was sentenced to 20 years of rigorous imprisonment alongside a fine of Rs. 1,00,000 for aggravated penetrative sexual assault, 5 years for aggravated sexual assault, and 5 years for administering intoxicating substances to a child, with all substantive sentences running concurrently. He was acquitted of the offence under Section 377 IPC. Challenging this conviction and sentence, the accused approached the High Court.
Arguments Before the Court
Counsel for the appellant contended that the prosecution evidence was insufficient to sustain the conviction. It was argued that the victim was a boy with bad habits against whom local residents had previously complained, leading to the false implication of the accused. The counsel further submitted that since the appellant was 61 years old, leniency should be extended in terms of sentence.
On the other hand, the learned Public Prosecutor strongly opposed the appeal, submitting that the victim’s (PW1) testimony was credible, cogent, and corroborated by official witnesses, including the Childline counselor and police officers. It was argued that apart from a bald assertion of false implication, no specific defence was established during cross-examination, and no evidence was brought on record to support the claim of previous complaints against the boy.
Court’s Analysis and Key Observations
The High Court observed that the minority of the victim was indisputably established through the school admission register (Ext.P15), proving that the boy was born on May 3, 2005, and was a child under Section 2(1)(d) of the POCSO Act at the time of the incident.
Addressing the primary legal issue of whether the act of kissing the victim’s penis fell within the ambit of “penetrative sexual assault” under Section 3(d) punishable under Section 6 read with Section 5(l) of the POCSO Act, the Court analyzed the statutory definition.
The Court observed:
“Going through the evidence of PW1, that the accused kissed on his penis on two occasions, along with the statutory wordings in Section 3(d) of the POCSO Act, it could be seen that applying the mouth of the accused to the penis, vagina, anus or urethra of the child is sufficient to find an offence as stated in Section 3(d) of the POCSO Act. That is to say, the law does not mandate oral sex or deeper penetration for this specific clause and any intentional physical contact where the mouth is applied to the specified private parts satisfies the mandate.”
The Court further held:
“Similarly, when the mouth touches the penis with sexual intent, the said act to be categorized as penetrative sexual assault under Section 3(d), punishable under Section 4 of the POCSO Act. Thus the learned special judge is right in finding that the accused committed offence punishable under Sections 5( ) r/w. 6 of the POCSO Act.”
Regarding the conviction under Section 10 read with Section 9(l) of the POCSO Act, the Court held:
“In the instant case, the evidence of PW1 would show that the accused repeatedly kissed on the penis of the victim, be it so, the learned Special Judge is right in holding that the appellant/accused committed offence under Section 9( ) r/w.10 of the POCSO Act. Hence, the conviction is liable to be sustained.”
Decision
Finding no merit in the appeal, the High Court held that the conviction and the sentence imposed by the Special Court were reasonable and did not warrant any interference. Accordingly, the High Court dismissed the appeal and confirmed the conviction and sentences.
Case Details:
- Case Title: Thomas Thomas v. State of Kerala
- Case No.: CRL.A NO. 1843 OF 2023
- Bench: Justice A. Badharudeen
- Date of Judgment: September 1, 2026
