Kissing Child's Penis Amounts To Penetrative Sexual Assault Under POCSO: Kerala HC Upholds 20-Year Sentence

The Kerala High Court has upheld the conviction and 20-year sentence imposed on a 61-year-old man under the POCSO Act, 2012, holding that applying the mouth to a child’s penis, with sexual intent, including kissing, falls within the statutory definition of penetrative sexual assault under Section 3(d) of the Act.

Justice A. Badharudeen dismissed the criminal appeal filed by the accused and confirmed the conviction and sentence imposed by the Fast Track Special Court, Pathanamthitta.

What were the allegations?

The prosecution case was that on January 26, 2020, the accused gave liquor and a ganja beedi to a 14½-year-old boy at a shop room owned by him at Kallanmodi in Mezhuveli Panchayat.

He was thereafter alleged to have subjected the child to aggravated sexual assault twice on the same day.

The victim, examined as PW1, testified about the incidents. His age was established through the school admission register produced through the Headmistress, which recorded his date of birth as May 3, 2005.

During the trial, the prosecution examined nine witnesses and produced documents. No defence evidence was adduced. The Special Court subsequently convicted the accused.

What did the parties argue?

Before the High Court, the accused argued that the victim had certain behavioral problems and that complaints had been made against him locally, claiming that he had consequently been falsely implicated.

The defence also argued that the prosecution evidence was insufficient to establish the offences. Leniency was sought on the ground that the accused was 61 years old.

The prosecution opposed the appeal and relied principally on the victim's testimony, supported by other evidence. It also pointed out that, during cross-examination, no specific defence had been put to the victim to substantiate the allegation that the case had been falsely instituted.

Kerala HC examines Section 3(d) POCSO

The High Court examined whether the evidence established the commission of penetrative sexual assault under Section 5(l) read with Section 6 of the POCSO Act.

Section 3(d) defines penetrative sexual assault to include a person applying his mouth to the penis, vagina, anus or urethra of a child, or making the child do so.

The Court noted that the victim's evidence was that the accused had kissed his penis on two occasions. The Court held: "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."

The Court further clarified that the statutory provision does not require a greater degree of penetration: "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."

On this basis, the High Court held that the Special Judge was correct in finding the accused guilty under Section 5(l) read with Section 6 of the POCSO Act.

Repeated sexual assault charge also upheld

The High Court separately considered the charge under Section 9(l) read with Section 10 of the POCSO Act, which concerns sexual assault committed against a child more than once or repeatedly.

The Court found that the victim's evidence established that the accused had repeatedly kissed his penis and consequently upheld the finding under Sections 9(l) and 10.

20-year sentence confirmed

The trial court had imposed 20 years' rigorous imprisonment and a ₹1 lakh fine for the offence under Section 6 read with Section 5(l) of the POCSO Act.

It had also imposed five years' rigorous imprisonment with a ₹50,000 fine under Section 10 read with Section 9(l) of the POCSO Act.

Another five years' rigorous imprisonment with a ₹50,000 fine under Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015, was also imposed. The substantive sentences were directed to run concurrently.

The High Court found the sentence reasonable and refused to interfere: "Coming to the sentence, the sentence is very reasonable. Hence, the sentence imposed by the learned Special Judge is also confirmed."

The criminal appeal was accordingly dismissed. The conviction and sentence were confirmed.

Case Title : Thomas Thomas v. State of Kerala

Date of Judgment: September 1, 2026

Bench: Justice A. Badharudeen