Kerala HC Upholds POCSO Conviction Despite Victim Turning Hostile on Intercourse Allegation
The High Court of Kerala confirmed a three-year sentence under Section 7 read with Section 8 of the POCSO Act, rejecting eight grounds of appeal including a constitutional challenge to the Act's age threshold.
Justice A. Badharudeen, sitting singly at the High Court of Kerala at Ernakulam, dismissed a criminal appeal filed by Ebin A.V. against his conviction by the Additional District and Sessions Court (Violence Against Women and Children), Ernakulam. The Special Court had, on 14 November 2017, found Ebin guilty under Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act and sentenced him to three years' rigorous imprisonment with a fine of Rs. 10,000. The High Court, hearing the appeal finally on 8 April 2026 and delivering judgment on 25 May 2026, found none of the eight grounds urged by the appellant capable of unsettling the verdict. The court held that the victim's unchallenged testimony about sexual overtures short of intercourse was sufficient to sustain the conviction, even though she had been declared hostile on the question of sexual intercourse.
The Offences Alleged and the Trial Court's Finding
The prosecution alleged that Ebin, then aged 21, committed sexual assault against a 17-year-old victim on a day in April 2016 and again in May 2016. The charges framed by the Special Court covered Section 376(2)(n) of the Indian Penal Code and multiple provisions of the POCSO Act, including Section 3(a) read with Sections 5(l) and 6, and Section 7 read with Section 8.
During trial, the prosecution examined fifteen witnesses (PWs 1 to 15) and exhibited eleven documents (Exts. P1 to P11). The accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure but chose not to adduce any defence evidence.
The Special Court ultimately convicted Ebin only under Section 7 read with Section 8 of the POCSO Act — the sexual assault provision — and not for the more serious penetrative offences. The sentence was three years' rigorous imprisonment and a fine of Rs. 10,000, with a default sentence of one month's rigorous imprisonment.
What the Victim Deposed
The victim, examined as PW1, stated that her father was working in the Andaman and Nicobar Islands and her mother in Saudi Arabia, and that she and her sisters lived in a hostel. She identified Ebin at the dock as someone introduced to her by her friend Anupama, and said she used to call him on a mobile phone.
She deposed that during school vacation, at around 11 p.m., Ebin arrived at her house on a two-wheeler, parked it on the road, and entered through the kitchen door. She took him to her room, where he kissed her, hugged her, and touched her private parts with her consent. She said the same acts were repeated on two further occasions.
However, PW1 was declared hostile when she stated that there was no sexual intercourse between her and the accused. The prosecution's case had alleged intercourse, but the victim did not support that allegation in court.
The High Court observed that although PW1 turned hostile on the intercourse allegation, her evidence about the other sexual overtures was never challenged in cross-examination. No suggestion was put to her that those versions were false. The court applied the settled position that a hostile witness's evidence is not to be discarded entirely, particularly where the defence has not cross-examined the witness on the portions that remain unchallenged.
Eight Grounds of Appeal and the Court's Responses
Substratum of the prosecution case. The appellant argued that because the victim herself denied sexual intercourse, the foundational basis of the prosecution case collapsed. The High Court rejected this, holding that the unchallenged portions of PW1's testimony disclosed the ingredients of the offence under Section 7 of the POCSO Act, which does not require penetration.
Contradictions and improvements in PW1's testimony. The court found that the defence had made no attempt to cross-examine PW1 on the facts she did disclose, and therefore the challenge based on contradictions and improvements could not be sustained.
Failure to prove the victim's minority. The appellant contended that no cogent evidence established the victim was below 18 years. The court pointed to Ext. P4, a birth certificate issued by the Secretary of Puthenvelikkara Panchayat, proved through PW5, which showed the victim's date of birth as 24 December 1998. The court held that a birth certificate issued by local authorities is a reliable document for proving age, and the contention failed.
Constitutional challenge to the POCSO age threshold. The appellant argued that a 17-year-old girl possesses the mental maturity to consent, and that criminalising consensual relations with a peer violates Article 14 and Article 21 of the Constitution. The court declined to entertain this argument, stating that a person below 18 years is treated as a minor for the purposes of the POCSO Act and that the challenge could not be considered.
Invalidity of the medical certificate. The appellant contended that the medical certificate was not in the prescribed form under medico-legal protocols. The court addressed this alongside the potency test challenge without separately elaborating on the certificate's form, treating the overall medical evidence as part of the prosecution record.
Potency test conducted without consent. Ext. P8 was a certificate issued by PW9, who was working as Chief Medical Officer at Taluk Hospital, North Paravur, certifying the potency of the accused. The appellant argued that conducting the test without informed consent violated Article 21. The High Court rejected this, holding that a potency test in a criminal case is legally permissible without the consent of the accused and is not prohibited under Article 21 of the Constitution.
Ineffective assistance of trial counsel. The appellant urged that the defence lawyer's failure to conduct effective cross-examination amounted to ineffective assistance, prejudicing his fair trial rights under Article 21. The court found that the accused had been defended by a lawyer of his own choice and had no case that the lawyer lacked competence. The challenge was not sustained.
Sole uncorroborated testimony. The appellant argued that conviction in a sexual offence case cannot rest on the sole testimony of the victim without independent witnesses, recovery evidence, or forensic corroboration. The court held that PW1's evidence was wholly reliable to the extent it disclosed the ingredients of Section 7 of the POCSO Act. The court also noted that PW1's sister (PW4), her father (PW3), and PW2 — a member of the Rural Juvenile Police who recorded PW1's statement on 1 July 2016 as directed by the Child Welfare Committee — all corroborated the prosecution case.
Why Section 7 Was the Operative Provision
The High Court set out the text of Section 7 of the POCSO Act in its reasoning. The provision covers whoever, with sexual intent, touches the vagina, penis, anus, or breast of a child, or makes the child touch those parts of any person, or does any other act with sexual intent involving physical contact without penetration. The court held that touching the relevant body parts of a child with sexual intent, by itself, attracts the offence under Section 7, without any requirement of penetration.
Because PW1's evidence of kissing, hugging, and touching of private parts was unchallenged, the court found it wholly reliable and sufficient to establish the ingredients of Section 7. The fact that the victim denied intercourse did not affect the conviction under this provision.
Sentence and the Statutory Minimum
The Special Court had imposed the maximum sentence of three years for the offence under Section 7 read with Section 8 of the POCSO Act. The High Court noted that three years is also the statutory minimum sentence for this offence. Because the sentence was at the statutory floor, the court held that no reduction was legally permissible. The fine of Rs. 10,000 and the default sentence of one month's rigorous imprisonment were also left undisturbed.
Order
The High Court dismissed Criminal Appeal No. 1166 of 2017. The conviction and sentence imposed by the Additional District and Sessions Court (Violence Against Women and Children), Ernakulam, in S.C. No. 756 of 2016 by judgment dated 14 November 2017 stand confirmed. The Registry was directed to forward a copy of the judgment to the Special Court concerned forthwith for information and compliance.