Slightest degree of penetration is enough for penetrative sexual assault under POCSO, Kerala High Court holds

26 October 2026

Justice A. Badharudeen decided Crl.A. No. 1265 of 2023, Shaji v. State of Kerala. The Court held that placing the penis on the vagina after removing the child's underwear involves the slightest degree of penetration and so amounts to penetrative sexual assault under Section 3 of the POCSO Act. It is therefore different from mere touching, which is sexual assault under Section 7. Because the child was below twelve years, the aggravated penetrative sexual assault provision in Section 5 also applied. The Special Judge had convicted the appellant under Sections 3(a), 4(2), 5(m) and 6 of the POCSO Act and Section 376AB of the IPC and given twenty years' imprisonment for each offence with a fine. The High Court upheld the POCSO conviction but set aside the separate sentence under Section 376AB IPC, holding that Section 42 of the POCSO Act requires only the greater punishment to be imposed when the same act falls under more than one provision. The appeal was allowed in part.