The Kerala High Court has held that applying the mouth to a child’s penis with sexual intent falls within the definition of “penetrative sexual assault” under Section 3(d) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The Court clarified that the law does not require deeper penetration or oral sex for the provision to apply.
Justice A. Badharudeen delivered the judgment on September 1, 2026, while dismissing an appeal against a conviction by the Fast Track Special Court, Pathanamthitta.
Background Of The Case
The appeal arose from a 2023 judgment of the Special Court in SC No.260 of 2020. The accused had been convicted under Sections 10 read with 9(l) and Section 6 read with 5(l) of the POCSO Act, besides Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
The prosecution case concerned a 14-and-a-half-year-old boy. According to the evidence recorded before the trial court, the accused had taken the child inside a shop room and provided him liquor and ganja. The child alleged that the accused kissed his penis on two occasions.
The Special Court had imposed five years’ rigorous imprisonment with fine for aggravated sexual assault, 20 years’ rigorous imprisonment with fine for aggravated penetrative sexual assault, and another five years’ rigorous imprisonment with fine under the JJ Act. The sentences were ordered to run concurrently.
Court’s Observation
The High Court examined the statutory definition of penetrative sexual assault under Section 3(d) of the POCSO Act, which specifically covers applying the mouth to the penis, vagina, anus or urethra of a child.
The Court observed:
“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.”
It further held that when the mouth touches the penis of a child with sexual intent, the act falls within Section 3(d) and is punishable as penetrative sexual assault.
The Court also considered the fact that the act had allegedly occurred twice. Referring to Section 9(l), which deals with sexual assault committed more than once or repeatedly, the Court held that the conviction under Section 9(l) read with Section 10 was also sustainable.
Decision
The High Court found no reason to interfere with the findings of the Special Court. It held that the sentence imposed was reasonable and confirmed both the conviction and sentence.
The Court accordingly dismissed the criminal appeal.
“In the result, this appeal fails and is dismissed accordingly, confirming the conviction and sentence.”
Case Details
Case Title: Thomas Thomas v. State of Kerala
Case Number: Crl.A. No. 1843 of 2023
Judge: Justice A. Badharudeen
Decision Date: September 1, 2026
