Justice A. Badharudeen, Kerala High Court
Section 3(d) POCSO Act Attracted Where Mouth Is Applied To Private Parts Of Victim Child: Kerala High Court
|The Kerala High Court was considering an appeal filed by the sole accused booked in a case registered under the POCSO Act.
The Kerala High Court has upheld the conviction of a man accused of kissing a teenage boy on his penis on two occasions, while observing that such an act would be categorized as penetrative sexual assault. The High Court further explained that the law does not mandate oral sex or deeper penetration and any intentional physical contact where the mouth is applied to the specified private parts satisfies the mandate under Section 3(d).
The High Court was considering an appeal filed by the sole accused booked in a case registered under the Protection of Children from Sexual Offences Act (POCSO Act) assailing the judgment whereby he was convicted.
The Single Bench of Justice A. Badharudeen held, “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. 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.”
Advocate M.R. Sasith represented the Appellant while Public Prosecutor M A Shihab represented the Respondent.
Factual Background
It was alleged that the accused had given liquor and intoxicating substances to smoke to the victim, a boy aged 14-and-a-half years, at the shop room owned by the accused. Thereafter, he was subjected to aggravated sexual assault twice on that day. On this premise, the prosecution alleged commission of offences punishable under Sections 4 read with Sections 3(d), 7, 8, 6, 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 (JJ Act) by the accused.
Reasoning
The Bench explained that Section 5(l) provides that whoever commits penetrative sexual assault on a child more than once or repeatedly shall be punished under Section 6, and the sentence of imprisonment provided is not less than twenty years, which may be extended to imprisonment for life.
Considering the evidence of the victim that the accused kissed him on his penis on two occasions, along with the statutory wordings in Section 3(d) of the POCSO Act, the Bench held 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.
Holding that when the mouth touches the penis with sexual intent, the said act is to be categorised as penetrative sexual assault, the Bench upheld the finding of the Special Judge that the accused committed an offence punishable under Sections 5(l) read with Section 6 of the POCSO Act.
Thus, confirming the sentence upon the accused, the Bench dismissed the appeal.
Cause Title: Thomas Thomas v. State Of Kerala (Neutral Citation: 2026:KER:66530)