Applying Mouth to Child's Penis Constitutes Penetrative Sexual Assault Under Section 3(d) POCSO, No Deeper Penetration Required: Kerala HC

The Kerala High Court upheld a 20-year sentence, holding that kissing a child's penis twice satisfies Section 3(d) of the POCSO Act without requiring oral sex or deeper penetration.

Justice A. Badharudeen of the High Court of Kerala, sitting singly, dismissed a criminal appeal filed by a 61-year-old man convicted under the Protection of Children from Sexual Offences Act (POCSO Act) and the Juvenile Justice (Care and Protection of Children) Act, 2015. The accused had challenged his conviction and aggregate sentence by the Fast Track Special Court, Pathanamthitta in SC No. 260 of 2020. The High Court affirmed that applying the mouth to a child's penis on two occasions squarely falls within Section 3(d) of the POCSO Act and amounts to penetrative sexual assault, punishable under Section 6 read with Section 5(l). The ruling clarifies that the statute does not demand oral sex or deeper penetration to engage that clause.

The Incident and Trial Proceedings

The prosecution alleged that at around 7 pm on 26 January 2020, the accused Thomas Thomas took the victim — a boy aged 14½ years — inside a shop room at Kallanmodi, Mezhuveli Panchayat, which he was running. The accused removed the boy's shirt and pants and kissed his penis. He then gave the boy ganja wrapped in paper and compelled him to smoke it, followed by forcing him to drink beer.

After the boy lost consciousness, he was given food. Later that evening, the boy returned to the shop, and the accused again removed his clothing and repeated the act. The following morning, one Mohanan, who operated a nearby fruit shop, found the victim smoking outside the accused's shop and informed his father. The father took the boy for counselling at the Childline office, Pathanamthitta, on 28 January 2020.

The victim's First Information Statement was recorded on 30 January 2020 by the women Sub-Inspector attached to DCRB, Pathanamthitta. The FIR was registered at Elavumthitta Police Station as Crime No. 41 of 2022. Nine prosecution witnesses were examined during trial, including the victim (PW1), the Childline counsellor (PW2), the District Co-ordinator of Childline (PW5), investigating officers (PW6, PW7, PW9), and the Headmistress of the victim's school (PW8). Fifteen exhibits were admitted. No defence evidence was led.

The Fast Track Special Court found Thomas Thomas guilty under Section 10 read with Section 9(l) of the POCSO Act (repeated sexual assault), Section 6 read with Section 5(l) of the POCSO Act (aggravated penetrative sexual assault committed more than once), and Section 77 of the JJ Act. He was acquitted of the charge under Section 377 of the Indian Penal Code. The sentence imposed on 2 November 2023 was five years' rigorous imprisonment with a fine of Rs. 50,000 for the Section 10/9(l) offence, twenty years' rigorous imprisonment with a fine of Rs. 1,00,000 for the Section 6/5(l) offence, and five years' rigorous imprisonment with a fine of Rs. 50,000 for the Section 77 JJ Act offence. The sentences were directed to run concurrently, with set-off allowed from 13 February 2020 to 26 May 2020.

Contentions Before the High Court

The counsel for the appellant argued that the victim was a boy with bad habits and that complaints had been filed against him at the police station by people in the locality, suggesting the accused was falsely implicated. She contended that the prosecution evidence was insufficient to sustain the findings of the Special Court. She also urged that leniency be shown on account of the accused's age of 61 years.

The Public Prosecutor countered that the victim's testimony was consistent and supported by other evidence. The prosecution pointed out that during the cross-examination of PW1, no specific defence was put forward, and no evidence was placed on record to support the allegation that a complaint had been filed against the victim before the incident.

Whether Kissing a Child's Penis Is Penetrative Sexual Assault

The central legal question was whether the acts described by PW1 — that the accused kissed his penis on two occasions — amount to penetrative sexual assault within the meaning of Section 3(d) of the POCSO Act, thereby attracting the aggravated offence under Section 5(l) read with Section 6.

Section 3(d) states that a person commits penetrative sexual assault if he “applies his mouth to the penis, vagina, anus, urethra of the child.” The Court read this provision carefully alongside the victim's evidence and held that the statute does not require oral sex or deeper penetration for the clause to be engaged. Any intentional physical contact where the mouth is applied to the specified private parts with sexual intent satisfies the definition.

The Court stated plainly: when the mouth touches the penis with sexual intent, the act is penetrative sexual assault under Section 3(d), punishable under Section 4 of the POCSO Act. Since the acts were committed on more than one occasion, the aggravated form under Section 5(l) applied, carrying a minimum of twenty years' imprisonment under Section 6.

The child's status as a minor was not disputed. His date of birth was established as 3 May 2005 through Ext. P15, the school admission register produced by PW8, the Headmistress.

Assessment of PW1's Evidence and the Defence of False Implication

The Court examined the victim's deposition in detail. PW1 had described both incidents consistently. He narrated how the accused manipulated him, including directing him to quarrel with his parents, to claim he was an adopted child, and even to throw a stone at his father — conduct that led the family to initially take the boy to a mental hospital rather than a psychologist. This account was corroborated by PW2 and PW5 from the Childline office, who confirmed that the victim was brought for counselling and that the incidents were disclosed there before the police were involved.

The defence suggestion that the accused was falsely implicated because of community complaints about the victim's behaviour found no evidentiary footing. The Court noted that no material was placed on record to substantiate the claim that such a prior complaint existed or that it had any bearing on the prosecution's case.

As for the Section 9(l) read with Section 10 conviction, the repeated kissing of the victim's penis on two occasions during the same evening also satisfied the ingredient of sexual assault committed more than once. The Special Court's conviction on this count was confirmed as well.

Section 77 of the Juvenile Justice Act

The accused was also convicted under Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which penalises giving intoxicating substances to a child. The prosecution evidence established that the accused administered ganja and beer to the 14½-year-old victim on the night of the incident. The conviction and five-year sentence under this provision were separately confirmed.

Sentence

On the question of sentence, the Court declined to interfere. The trial court's sentence of twenty years' rigorous imprisonment for the Section 6/5(l) offence was described as “very reasonable” given the gravity of the conduct. The plea for leniency based on the accused's age was not accepted. All sentences were confirmed as imposed, running concurrently, with the earlier set-off preserved.

Order

Criminal Appeal No. 1843 of 2023 was dismissed. The conviction and sentence recorded by the Fast Track Special Court, Pathanamthitta in SC No. 260 of 2020 were confirmed in their entirety. The Registry was directed to forward a copy of the judgment to the Special Court forthwith.