Kerala High Court: Kissing a child’s penis amounts to penetrative sexual assault under POCSO; 20-year sentence upheld

The prosecution alleged that on 26 January 2020, the accused, who was operating a shop at Kallanmodi, gave liquor and ganja to PW1, a 14½-year-old boy, and sexually assaulted him twice inside the shop.

The alleged acts included removing the child’s clothes and kissing his penis.

The victim subsequently disclosed the incidents to his family, Childline personnel, the police, and the Magistrate.

The prosecution examined PW1 to PW9 and marked Exhibits P1 to P15.

The victim’s date of birth was proved through the school admission register, establishing his status as a child under the POCSO Act.

The Special Court convicted the accused under Sections 10 read with 9(l) and 6 read with 5(l) of the POCSO Act and Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

It imposed concurrent sentences of five years’ rigorous imprisonment under Section 10, twenty years’ rigorous imprisonment under Section 6, and five years’ rigorous imprisonment under Section 77, along with fines.

The accused was acquitted of the charge under Section 377 IPC.

Whether the accused committed aggravated sexual assault punishable under Section 10 read with Section 9(l) of the POCSO Act.

Whether the accused committed penetrative sexual assault more than once or repeatedly, punishable under Section 6 read with Section 5(l) of the POCSO Act.

Whether the accused committed the offence punishable under Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Whether the conviction and sentence imposed by the Special Court required interference in appeal.

The Court applied Section 2(1)(d) of the POCSO Act, under which a person below eighteen years is a child.

Sections 3(d) and 4 treat the intentional application of the accused’s mouth to a child’s penis, vagina, anus, or urethra as penetrative sexual assault.

Section 5(l) read with Section 6 enhances the offence where penetrative sexual assault is committed more than once or repeatedly, prescribing a minimum sentence of twenty years.

Section 9(l) read with Section 10 similarly aggravates sexual assault committed more than once or repeatedly, prescribing imprisonment of not less than five years.

The Court also affirmed the conviction under Section 77 of the Juvenile Justice Act.

The Court found the victim’s testimony to be the central evidence and held that his account consistently established that the accused removed his clothes and kissed his penis on two occasions.

Applying Section 3(d) of the POCSO Act, the Court held that actual oral sex or deeper penetration was not necessary; the intentional application of the mouth to the child’s penis was sufficient to constitute penetrative sexual assault.

Since the act occurred twice, the requirements of repeated or aggravated assault under Sections 5(l) and 9(l) were satisfied, attracting Sections 6 and 10 respectively.

The victim’s age was independently corroborated by the school admission register, while the evidence of Childline officials, police witnesses, and the Magistrate-related statements supported the prosecution narrative.

The Court rejected the general defence allegation that the case had been falsely foisted and found no reason to interfere with the Special Court’s findings or sentence.

The sentences—five years’ rigorous imprisonment under Section 10, twenty years’ rigorous imprisonment under Section 6, and five years’ rigorous imprisonment under Section 77, with the prescribed fines—were confirmed to run concurrently, with set-off under Section 428 CrPC.

The criminal appeal was dismissed, and the acquittal under Section 377 IPC remained undisturbed.