Court Rules Placement of Penis on Vagina Constitutes Penetrative Assault under POCSO Act, Sets Aside Redundant IPC Sentence
In a significant judgment dated October 13, 2026, the Kerala High Court, presided over by Justice A. Badharudeen, upheld the conviction of Shaji, the appellant, for committing penetrative sexual assault on a 3-year-old girl, his neighbour. The Court confirmed the findings of the Fast Track Special Court, North Paravur, which had convicted Shaji under Sections 3(a), 4(2), 5(m), and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), as well as Section 376AB of the Indian Penal Code (IPC).
The accused was alleged to have removed the undergarment of the minor victim and placed his penis on her vagina, causing pain and making her cry. The victim's testimony was corroborated by medical evidence from the doctor who examined the child shortly after the incident. The medical report noted that the "vaginal region appeared patulous" and that the findings were consistent with recent vaginal sexual assault, though no external injuries were observed.
The appellant challenged the conviction, arguing that mere placement of the penis on the vagina without actual penetration did not amount to penetrative sexual assault but only sexual assault under Section 7 of the POCSO Act, which involves touching without penetration. He cited precedents where courts held that absence of penetration negated the charges of penetrative assault.
However, the High Court relied on a detailed analysis distinguishing "placing" from "touching," emphasizing that placing the penis on the vagina, especially when it causes pain to the victim, indicates at least the slightest degree of penetration or manipulation causing penetration. The Court referred to earlier judgments, including those of the Supreme Court, which clarified that actual penile entry into the vagina is not essential to constitute penetrative sexual assault; even slightest penetration into labia majora or vulva suffices.
While confirming the conviction under the POCSO Act and IPC, the Court observed that the sentencing imposed by the Special Court required modification. The Special Court had sentenced the accused to rigorous imprisonment for 20 years along with a fine under both Section 6 of the POCSO Act and Section 376AB IPC. The High Court noted that Section 42 of the POCSO Act mandates that when the same act constitutes offences under both POCSO and IPC, the punishment should be imposed under the Act that prescribes the greater punishment, thus preventing double jeopardy for the same offence.
Accordingly, the Court set aside the sentence under Section 376AB IPC but maintained the 20-year rigorous imprisonment and fine under the POCSO Act. The sentences were ordered to run concurrently. The Court further directed that the fine amount be paid as compensation to the victim and recommended victim compensation under the Kerala State Victim Compensation Scheme.
This judgment highlights the strict interpretation of the POCSO Act provisions protecting minors from sexual offences, clarifying that any act involving the slightest penetration or manipulation causing penetration qualifies as penetrative sexual assault. It also reinforces the principle against imposing multiple sentences for the same act under different statutes when one provides for higher punishment.
Bottom Line:
POCSO Act - Penetrative sexual assault - Statement of 3-year-old victim that accused placed his penis on her vagina after removing undergarment, causing pain and crying - Held, act amounted to at least slightest degree of penetration or manipulation causing penetration and attracted Sections 3(a), 4(2), 5(m) and 6 of POCSO Act as well as Section 376AB IPC - However, in view of Section 42 of POCSO Act, separate sentence under Section 376AB IPC could not be sustained once sentence under Section 6 POCSO Act was imposed.
Statutory provision(s):
Protection of Children from Sexual Offences Act, 2012 Sections 3(a), 4(2), 5(m), 6, 7, 42; Indian Penal Code, 1860 Sections 370, 376AB, 374 (CrPC), 357(1)(b) (CrPC)
Shaji v. State of Kerala, (Kerala) : Law Finder Doc Id # 3000474
