Kissing child's penis is penetrative sexual assault under POCSO Act: Kerala High Court

The Kerala High Court on Tuesday upheld the conviction and 20-year prison sentence of a 61-year-old man for the offence of aggravated penetrative sexual assault on a 14-year-old boy under the Protection of Children from Sexual Offences Act, 2012 (POCSO). [Thomas Thomas v State of Kerala & ors].Justice A Badharudeen observed that kissing a child's penis with sexual intent amounts to penetrative sexual assault under Section 3(d) of the POCSO Act.The Court explained that the provision does not require oral sex or deeper penetration of penis into the mouth of the accused for constituting an offence. It is sufficient if the accused applies his mouth to the private parts of a child, the judge said.Since the minor boy in this case had testified that the accused had sexually assaulted him by kissing on his private part on two other occasions, the Court upheld his conviction for the aggravated penetrative sexual assault under Sections 5(l) (sexual assault on child more than once) r/w Section 6 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. 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," the Court stated..According to the prosecution, the incident took place in January 2020 at a shop run by the accused in Pathanamthitta district, where the accused allegedly gave the child alcohol and ganja after which he sexually assaulted him twice on the same day.The boy subsequently disclosed the incidents during counselling and later gave statements to the police and a magistrate.During the trial, the boy testified that the accused took him inside the shop, removed his clothes and kissed his penis.A special POCSO court subsequently convicted the accused for the offences charged against him under the POCSO Act and Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act').He then challenged his conviction before the High Court.He argued that the prosecution evidence was insufficient and that he had been falsely implicated in the case.The prosecution on the other hand relied on the child's testimony and other evidence to support the conviction..The Court examined whether the act described by the child amounted to penetrative sexual assault under Section 3(d) of the POCSO Act.It found that the child's evidence clearly established that the accused had sexually assaulted him twice and noted that no specific defence had been put to the child during cross-examination.It, therefore, upheld the conviction for the aggravated penetrative sexual assault as the crime was committed on the child more than once.Finding that the sentence imposed by the special court was reasonable, the Court dismissed the appeal and confirmed the conviction as well as sentence..Advocate MR Sasith appeared for the accused. Public prosecutor MA Shihab appeared for the state..[Read Judgment]