Kissing Child's Penis Amounts To Penetrative Sexual Assault Under POCSO Act: Kerala High Court

Justice A. Badharudeen dismissed an appeal preferred by a convict, who was awarded a 20-year term for kissing a 14 ½ year old boy on two occasions.

“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,” the Court observed.

The prosecution allegation was that the appellant/accused gave liquor and ganja to the victim, and thereafter, subjected him to aggravated sexual assault twice on the same day. He was accused of the offences under Sections 4 [Punishment for penetrative sexual assault] r/w. 3(d) [Penetrative sexual assault], 7 [Sexual assault] r/w. 8 [Punishment for sexual assault] and 6 r/w. 5(l) of the POCSO Act, Section 377 [Unnatural offences] of the Indian Penal Code and Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The Special Court found him guilty of Sections 10 [Punishment for aggravated sexual assault], 9(l) [Aggravated sexual assault – sexual assault more than once or repeatedly], 6 [Punishment for aggravated penetrative sexual assault] and 5(l) [Aggravated penetrative sexual assault] of the POCSO Act and Section 77 JJ Act [Penalty for giving intoxicating liquor or narcotic drug or psychotropic substance to a child]. He was awarded a 20-year term as punishment. Challenging the conviction and sentence, he approached the High Court.

The Court noted that the status of the victim as a 'child' is not disputed and stood proved by the school admission register copy marked through the Headmistress. It also took note of the fact that the crucial evidence available is that of the victim, who had deposed as PW1.

The Court also noted that evidence was also tendered by the counsellor of Childline, who had referred the victim to the District Co-Ordinator. Additionally, the District Co-ordinator, the woman police officer who recorded the victim's statement, the Sub-Inspector who registered the FIR and the Inspector who conducted the investigation also tendered evidence to support the prosecution case, it was noted.

The Court, after examining Section 3, was of the view that putting mouth of a child's penis as well as the act of kissing would amount to penetrative sexual assault and no deeper penetration is statutorily required.

Since the kissing occurred twice on the same day, the Court held that the same amount to aggravated sexual assault as per Section 9(l).

“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(l) r/w.10 of the POCSO Act. Hence, the conviction is liable to be sustained,” the Court added.

It also refused to interfere with the sentence imposed by the Special Judge and dismissed the appeal.

Case No: Crl.A No. 1843 of 2023

Case Title: Thomas Thomas v. State of Kerala

Citation: 2026 LiveLaw (Ker) 482

Counsel for the appellant: M.R. Sasith

Counsel for the respondent: M.A. Shihab - Public Prosecutor

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