Kerala High Court Affirms Conviction for Aggravated Penetrative Sexual Assault
In a significant ruling, the Kerala High Court has upheld the conviction and 20-year imprisonment of a 61-year-old man for aggravated penetrative sexual assault on a 14-year-old boy, under the Protection of Children from Sexual Offences Act, 2012 (POCSO). The case, Thomas Thomas v State of Kerala & ors, was presided over by Justice A Badharudeen.
Justice Badharudeen clarified that under Section 3(d) of the POCSO Act, kissing a child’s penis with sexual intent qualifies as penetrative sexual assault. The court emphasized that the law does not require oral sex or deeper penetration into the mouth to constitute an offense. The mere act of applying one’s mouth to a child’s private parts with sexual intent suffices for an offense under this section.
The Court’s decision was based on the testimony of the minor, who recounted that the accused had sexually assaulted him by kissing his private parts on two separate occasions. Consequently, the court confirmed the conviction under Sections 5(l) (sexual assault on child more than once) read with Section 6 of the POCSO Act.
Justice Badharudeen stated, “The law does not mandate oral sex or deeper penetration for this specific clause, and any intentional physical contact with the mouth applied to specified private parts satisfies the mandate. When the mouth touches the penis with sexual intent, it is categorized as penetrative sexual assault under Section 3(d), punishable under Section 4 of the POCSO Act. Therefore, the learned special judge is right in finding that the accused committed an offense punishable under Sections 5(l) r/w. 6 of the POCSO Act.”
Incident Details and Court Proceedings
The prosecution detailed that the incident occurred in January 2020 at a shop operated by the accused in Pathanamthitta district. It was alleged that the accused provided the boy with alcohol and ganja before sexually assaulting him twice on the same day. The minor disclosed these incidents during counseling sessions and later provided statements to the police and a magistrate.
During trial proceedings, the boy testified that the accused led him into the shop, removed his clothes, and proceeded to kiss his penis. The special POCSO court convicted the accused under both the POCSO Act and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). The accused subsequently challenged the conviction in the High Court, arguing that the evidence was insufficient and claiming false implication.
However, the prosecution relied heavily on the child’s testimony and other evidence to uphold the conviction. The High Court examined whether the acts described by the child met the criteria for penetrative sexual assault under Section 3(d) of the POCSO Act. It was concluded that the evidence was clear and there was no substantial defense posed during cross-examination. The court thus confirmed the conviction and the sentence for aggravated penetrative sexual assault since the crime was repeated.
The appeal was dismissed, and the original conviction and sentence were upheld by the court. Advocate MR Sasith represented the accused, while Public Prosecutor MA Shihab appeared for the state.
[Read Judgment]
