THOMAS THOMAS vs STATE OF KERALA

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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
ST
TUESDAY, THE 1 DAY OF SEPTEMBER 2026/10TH BHADRA, 1948
CRL.A NO. 1843 OF 2023
CRIME NO.41/2022 OF ELAVUMTHITTA POLICE STATION,
PATHANAMTHITTA
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.260 OF
2020 OF FAST TRACK SPECIAL COURT, PATHANAMTHITTA
APPELLANT/ ACCUSED :
THOMAS THOMAS
AGED 61 YEARS
S/O ABRAHAM THOMAS, SOORAJ BHAVAN,
KALLANMODY, ELAVUMTHITTA P.O., MEZHUVELI
VILLAGE FROM JOY SADANAM VEETTIL,
PENNUKKARA P.O., ALA VILLAGE, CHENGANNUR,
PIN - 689520
BY ADV SRI.M.R.SASITH
RESPONDENT/ COMPLAINANT :
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
SRI.M A SHIHAB, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13.08.2026, THE COURT ON THE 01.09.2026 DELIVERED THE
FOLLOWING:

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CR
JUDGMENT
st
Dated this the 1 day of September, 2026
The sole accused in SC No.260/2020 on the files of the
Special Court for the trial of cases under the Protection of
Children from Sexual Offences Act (hereinafter referred to as
‘POCSO Act’ for short), Pathanamthitta, assails judgment
dated 02.11.2023 in the above case, whereby he was found
guilty for the offences punishable under Sections 10 r/w.9(l)
and 6 r/w. 5(l) of the POCSO Act as well as under Section 77
of the Juvenile Justice (Care and Protection of Children) Act,
2015 (hereinafter referred to as 'JJ Act' for short) and
sentenced as under:
“ In the result, the accused is sentenced to
undergo Rigorous Imprisonment for 5 years and
to pay a fine of Rs.50,000/- (Rupees Fifty
Thousand Only), in default of payment of fine, he
shall undergo Rigorous Imprisonment for another
6 months for the offence U/s.10 r/w. 9(l) of the

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Protection of Children from Sexual Offences Act,
he is sentenced to undergo Rigorous
Imprisonment for 20 years and to pay a fine of
Rs.1,00,000/- (Rupees One Lakh Only), in default
of payment of fine he shall undergo Rigorous
Imprisonment for another 12 months for the
offence U/s.6 r/w. 5(l) of the Protection of
Children from Sexual Offences Act and he is
sentenced to undergo Rigorous Imprisonment for
5 years and to pay a fine of Rs.50,000/- (Rupees
Fifty Thousand Only), in default of payment of
fine he shall undergo Rigorous Imprisonment for
another 6 months for the offence U/s.77 of the
Juvenile Justice (Care and Protection of Children)
Act. The accused is not found guilty of the
offence Under sec.377 of the Indian Penal Code
and he is acquitted U/s.235(1) of the Cr.P.C. for
the said offence. Set off is allowed to the accused
from 13.02.2020 to 26.05.2020, U/s. 428 of the
Cr.P.C., as against the substantive sentences,
which shall run concurrently.”
2. Heard the learned counsel for the
appellant/accused and the learned Public Prosecutor in

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detail. Perused the verdict under challenge and the records
of the trial court.
3. The prosecution case is that at about 7 pm on
26.01.2020, the accused had given liquor and ganja beedi to
smoke to the victim, who was examined as PW1, a boy aged
14 ½ years, at the shop room owned by the accused at
Kallanmodi in Mezhuveli Panchayat. Thereafter, he was
subjected to aggravated sexual assault twice on that day. On
this premise, the prosecution alleges commission of offences
punishable under Sections 4 r/w. 3(d), 7 r/w. 8 and 6 r/w. 5(l)
of the POCSO Act, Section 377 of the Indian Penal Code
(hereinafter referred to as ‘IPC’ for short) and Section 77 of
the JJ Act by the accused.
4. The learned Special Judge recorded evidence
after framing charge for the said offences. During trial, PW1
to PW9 were examined and Exts.P1 to P15 were marked on

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the side of the prosecution. No defence evidence was
adduced. Thereafter, he was convicted and sentenced, as
extracted above.
5. While assailing the judgment, the learned counsel
for the accused argued that, in this case, the victim is a boy
having bad habits and the people in the locality had given
complaint at the police station and on this premise, the
accused was implicated in this case without any reason.
According to her, the prosecution evidence is quite
insufficient to find commission of offences found by the
Special Court. That apart, the accused is a person aged 61
years and therefore, leniency is to be shown to him.
6. Whereas the learned Public Prosecutor strongly
supported the prosecution allegations, relying on the
evidence of victim (PW1), supported by other evidence, on
the submission that, apart from raising a defence that the

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case has been foisted, no specific defence was suggested
during cross-examination of PW1. It is also submitted that
regarding the filing of complaint as argued by the learned
counsel for the accused that no evidence forthcoming. In
such view of the matter, the prosecution case is well proved
and the verdict impugned would not require any interference.
7. Having considered the rival submissions, points
arise for consideration are,
1. Whether the Special Judge is right in holding
that accused committed the offence punishable
under Section 10 r/w. 9(l) of the POCSO Act?
2. Whether the Special Judge is right in holding
that accused committed the offence punishable
under Section 6 r/w. 5(l) of the POCSO Act?
3. Whether the Special Judge is right in holding
that accused committed the offence punishable
under Section 77 of the JJ Act?
4. Whether the impugned verdict would require
any interference by this Court?

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5. The order to be passed.
8. Point Nos.1 to 5
Here, the status of the victim as a child as defined
under Section 2(1)(d) of the POCSO Act is not disputed, or
else, the same has been proved by the prosecution through
PW8, the Headmistress, who had issued Ext.P15 copy of
school admission register, showing the date of birth of the
victim as 03.05.2005.
9. Regarding the occurrence, the crucial evidence
available is that of PW1, the victim. He deposed that he went
to the tea shop of one Somarajan in January 2020 to buy
sweets and biscuits. The accused was running the shop at
that time. The accused took him inside the shop room,
removed his shirt and pants and kissed his penis. Then the
accused gave him ganja covered with paper and forced him
to smoke. After that, the accused had forcefully given beer to
him in a bottle and compelled him to drink. He drank the beer

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to some extent, and after that, the accused advised him to
drink the remaining after taking it to home. The accused also
advised him to quarrel with his parents at home. After
smoking ganja, he lost his consciousness and then the
accused provided him meat and cooked tapioca. While he
was smoking cigarette at the terrace of the house, on hearing
an unusual sound at the back of the house, he pelted a stone
towards the place under the impression that it might be a
dog. But the stone landed on the back of his father. Then he
rushed to the shop of the accused again. The accused again
removed the shirt and pants of the victim, kissed his penis
and done him like earlier. After coming from the shop, he
walked along the road. At that time, the Police party arrived
there in a vehicle, questioned him, and advised him to go
home. On the next day morning, he again went to the shop

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and the accused provided him cigarette. He smoked the
same. One Mohanan, who runs a fruit shop there, found the
same, and he took him home and informed the matter to his
father. Hence, the victim was taken to hostel by his father
and thereafter taken to an office. He narrated there all the
incidents suffered by him at the hands of the accused. Later,
he was taken to the Police Station and before the learned
Magistrate. He described the incidents there also. He
admitted that he had given Ext.P1 FI Statement to the Police.
He also stated that he had given Exts.P2 and P3 statements
before the learned Magistrate. According to him, he had
created issues at home, stating that he was an adopted child,
as per the advice of the accused. He had quarrelled with his
parents on the ill advice of the accused that he was taken to
mental hospital and not before the Psychologist. He further
deposed that he had pelted the stone towards his father as

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per the advice of the accused. According to him, he had
been staying in a hostel for his studies.
10. Apart from the evidence of PW1 – the victim,
PW2, the then counsellor of Childline, Pathanamthitta,
during 2020, also was examined to prove that the victim was
brought by his parents for counselling due to his bad
behaviour, and she deposed that she had informed the
same to David Raji Mathew, the District Co-ordinator,
Childline. Though her educational qualification to work as a
counsellor was questioned, she answered that she had
passed MSW. Ext.P4 is the scene mahazar tendered in
evidence through PW3. Ext.P5 is the scene plan, tendered
in evidence through PW4, the then Village Officer, Mezuveli
during 2020.
11. Sri.David Raji Mathew, referred by PW2, got

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examined as PW5. He deposed that on 28.01.2020, PW1
was brought for counselling at the Childline office and he had
directed PW2-Smt.Shiny to give him counselling. It was PW6,
the women Sub Inspector of police attached to DCRB,
Pathanamthitta during 2020, who recorded Ext.P1 statement
given by PW1 as on 30.01.2020 and she identified her
signature therein. It was PW7, the Sub-Inspector of Police,
Elavumthitta Police Station during 2020, registered Ext.P6
FIR based on Ext.P1 FI Statement given by the victim. She
deposed about the same as well as the preparation of Ext.P4
and Exts.7 to P9, including the arrest of the accused based
on Exts.P7 to Ext.P9, arrest memo, inspection memo and
custody memo respectively. PW9, the then Inspector of
Police, Elavumthitta, also conducted the later stage of
investigation. According to him, he had filed report
incorporating offence under Section 5(l) of the POCSO Act.

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12. Here, the question to be considered is, whether
the offences under Section 5(l) r/w. 6 as well as Section 9(l)
r/w. 10 of the POCSO Act, are made out from the evidence of
PW1. 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 extended to imprisonment for life, and shall also be
liable to pay fine. The term ‘ penetrative sexual assault’ is
defined under Section 3(a) to (d), which provide as under:
“3. Penetrative sexual assault .—A person is said to
commit “penetrative sexual assault” if—
(a) he penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a child or makes the child to
do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or
anus of the child or makes the child to do so with him or
any other person; or
(c) he manipulates any part of the body of the child so as to

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cause penetration into the vagina, urethra, anus or any
part of body of the child or makes the child to do so with
him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra
of the child or makes the child to do so to such person
or any other person.”
13. Here, the contention raised by the learned Public
Prosecutor is that the evidence of PW1 would show the overt
acts described under Section 3(d) to find commission of
offence under section 5(l) of the POCSO Act. But the learned
counsel for the appellant is in the negative. 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

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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. Thus the learned special
judge is right in finding that the accused committed offence
punishable under Sections 5(l) r/w. 6 of the POCSO Act.
14. Coming to Section 9(l) of the POCSO Act, it has
been provided that whoever commits sexual assault on the
child more than once or repeatedly shall be punished under
Section 10 with imprisonment for a term which shall not be
less than five years, but which may extend to seven years,
and shall also be liable to fine. 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

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committed offence under Section 9(l) r/w.10 of the POCSO
Act. Hence, the conviction is liable to be sustained.
15. Coming to the sentence, the sentence is very
reasonable. Hence, the sentence imposed by the learned
Special Judge is also confirmed.
16. In the result, this appeal fails and is dismissed
accordingly, confirming the conviction and sentence.
Registry is directed to forward a copy of this judgment
to the Special Court, forthwith.
Sd/-
A. BADHARUDEEN
JUDGE
nkr