The Kerala High Court has held that placing the penis on a minor’s private parts, in the circumstances established by the evidence, can amount to penetrative sexual assault under the POCSO Act. Justice A. Badharudeen upheld the conviction of a 69-year-old man in a case involving a three-year-old girl, while setting aside the separate sentence imposed under Section 376AB of the Indian Penal Code.
Background
The prosecution alleged that on September 2, 2021, at about 2 pm, Shaji, a neighbour, committed penetrative sexual assault on the child in Vadakkekara, Ernakulam. The Fast Track Special Court, North Paravur, convicted him on July 27, 2023. It imposed 20 years’ rigorous imprisonment with a Rs 50,000 fine under each of three provisions: Sections 4(2) and 6 of the POCSO Act, and Section 376AB IPC. The sentences were to run concurrently.
The defence argued that the only direct evidence was the child’s statement that the accused placed his private part on hers. This, counsel said, amounts to touching, not penetration. At most, it would be “sexual assault” under Section 7 of the POCSO Act, punishable by a maximum of five years. Counsel relied on the Supreme Court’s ruling in Laxman Jangde and a Division Bench decision in Kuttappan @ Babukuttan, and noted that the doctor found no external injury. The Public Prosecutor countered that even the slightest penetration of the vulva or labia majora is enough, citing Raveendran V.S. and Nawabuddin.
The Court noted that the child, five years old when she testified, was found competent after preliminary questioning. She said her undergarment was removed, the accused placed his private part on hers, and she felt pain and cried. She stood firm under cross-examination. The doctor recorded that the vaginal region appeared patulous, with no external injury, and that the findings were not inconsistent with the history of recent sexual assault.
The Court drew a distinction between touching and placing, observing that the two are not the same. It then held:
“Thus, placing the penis on the vagina after removing the undergarment of the minor victim aged 3 years, which in turn caused pain to the victim which led the victim to cry, is nothing but slightest degree of penetration or manipulation of the vagina to cause penetration as defined under Section 3(a) to (d) of the POCSO Act.”
On sentencing, the Court pointed to Section 42 of the POCSO Act, which allows punishment under either law, whichever is greater. It said the Special Judge had lost sight of this provision, and observed:
“Therefore, in the instant case, there is no reason to impose sentence for the offence punishable under Section 376AB of IPC after imposing sentence for the offence punishable under Section 6 of the POCSO Act.”
The High Court confirmed the conviction and set aside only the sentence under Section 376AB IPC. The sentences for the other offences were upheld.
Since the appellant is already serving his sentence, no further orders were passed.
Case Details
- Case Title: Shaji v. State of Kerala
- Case Number: Crl.A No. 1265 of 2023
- Judge: Justice A. Badharudeen
- Decision Date: October 13, 2026
