Kissing child’s genitals is penetrative sexual assault under POCSO, rules Kerala High Court

The prosecution had alleged that the accused had given the 14-year-old boy liquor and a ganja beedi to smoke before subjecting him to aggravated sexual assault twice. It was stated that the accused took the minor boy inside a shop, removed his clothes and sexually abused him. The trial court convicted the accused under Section 6 (aggravated penetrative sexual assault) read with 5(l) and Sections 10 read with 9(l) of the POCSO Act, as well as Section 77 of the Juvenile Justice Act. He was sentenced to 20 years’ rigorous imprisonment.

The counsel for the accused argued that he was implicated in the case without any reason and sought leniency on account of his age. On the other hand, the prosecution argued that the survivor’s testimony was supported by other evidence and that no proof had been produced to substantiate the defence claim.

Justice A Badharudeen pronounced the order on September 1.

Conviction upheld

Examining the minor boy’s statement that the accused sexually abused him on two occasions, along with the legal terminology in Section 3(d) (defines pentrative sexual assault) of the POCSO Act, the court observed 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. It noted that Section 3 (d) does not mandate oral sex or deeper penetration.

The court further held that the special judge was right in holding that the accused committed the offence under Section 9(l) read with 10 of the Act, which provides that whoever commits sexual assault on the child more than once shall be punished with imprisonment for a term which shall not be less than five years, but which may extend to seven years.

“The evidence of PW1 (minor boy) 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 said.

Observing that the sentence imposed upon the accused was reasonable, the court dismissed the appeal.

For children facing abuse, exploitation or distress, Childline offers a free, 24-hour helpline that can be contacted at 1098 for help and protection.