Kerala HC Confirms 10-Year POCSO Sentence: Placing Vibrating Object on Vagina Amounts to Penetrative Sexual Assault

The Kerala High Court dismissed an appeal against conviction under the POCSO Act, holding that placing a vibrating object on the labia majora satisfies the statutory threshold of insertion “to any extent” under Section 3(b) of the Act.

Justice A. Badharudeen, sitting singly at the High Court of Kerala at Ernakulam, dismissed a criminal appeal filed by Joshy K.J., the first accused in SC No.1 of 2022 before the Fast Track Special Court, Perumbavoor. The Fast Track Special Court had, by judgment dated 30 September 2024, convicted Joshy K.J. under Section 4(1) read with Section 3(b) of the Protection of Children from Sexual Offences Act (“POCSO Act”), Section 376(1) read with Section 375(b), Section 354B, and Section 506(i) of the Indian Penal Code, sentencing him to ten years’ rigorous imprisonment for the POCSO offence. The High Court confirmed the conviction and sentence in full, and — on the question of sentence — ruled that no reduction below the statutory minimum of ten years was legally permissible.

What the Prosecution Alleged

The alleged incident occurred at 11 a.m. on 20 July 2019. The prosecution case was that Joshy K.J., acting as manager of the second accused, brought the victim — a minor girl then aged 17 years and 5 months — to a treatment room on the first floor of a building called ‘Pranavam’ at Kaloor-Vattapparambu Lane, Ernakulam, which had been leased by the second accused to run a treatment centre.

Inside the room, Joshy K.J. is alleged to have removed an attachment from a vibrating machine, fitted a penis-like structure onto it, pushed the victim onto a treatment bed, lowered her undergarments, and placed the vibrating machine on her vagina while it was in the vibrating condition. When the victim resisted, she described feeling severe pain. After she managed to push him away and dress, he allegedly threatened her that if she disclosed the incident she would be portrayed as a “bad lady” in society.

The FIR was registered only on 23 October 2021 — over two years after the incident — following the arrest of the second accused in a separate cheating case. Crime No.292/2021 was registered by the CBCID, Ernakulam.

Trial Court Findings and Sentence

The Fast Track Special Court recorded the evidence of fourteen prosecution witnesses and five defence witnesses. Material objects included the vibrating machine (MO1) and the penis-like attachment (MO2).

The trial court convicted Joshy K.J. and sentenced him as follows: ten years’ rigorous imprisonment and a fine of Rs.20,000 under Section 4(1) read with Section 3(b) of the POCSO Act; three years’ rigorous imprisonment and a fine of Rs.10,000 under Section 354B IPC; and six months’ rigorous imprisonment and a fine of Rs.5,000 under Section 506(i) IPC. No separate sentence was imposed under Section 376(1) IPC in view of the bar under Section 42 of the POCSO Act. All substantive sentences were directed to run concurrently. Fine amounts, if paid, were to be released to the victim as compensation under Section 357(1)(b) of the Code of Criminal Procedure. Set-off was allowed under Section 428 CrPC for the period from 24 October 2021 to 8 June 2022 when the accused was in custody as an undertrial.

The second accused was acquitted by the trial court of the charge under Section 19(1) read with Section 21 of the POCSO Act for failing to report the offence.

Arguments in the High Court

Advocate M.G. Sreejith, appearing for the appellant, raised four principal contentions. First, he argued that the delay of over two years in lodging the FIR was fatal to the prosecution. Second, he submitted that the victim was 17 years and 5 months old at the time — near majority — and that this cast doubt on the classification of the offence. Third, he contended that the trial court failed to scrutinise the victim’s evidence as that of an intrinsically pliable witness and had instead granted her implicit, uncritical reliance. Fourth, he submitted that without medical or scientific corroboration, a conviction could not be sustained, and that the sentence was in any event excessive.

Advocate Gajendra Singh Rajpurohit, appointed as State Brief, added a distinct point: the victim had not stated before the police that the vibrator was pressed on her vagina, and that version emerged only in her court deposition. He argued this omission undermined the core allegation of penetrative sexual assault.

Public Prosecutor Sri Sajeev P.K. opposed the appeal. He submitted that delay in POCSO cases is a recognised phenomenon, particularly where a minor victim is threatened and works within the domain of the accused. He pointed out that the victim had explained she feared the second accused’s associates and was able to disclose the incident only after the second accused was arrested. The absence of medical evidence, he argued, was explained by the gap of two years between the incident and its reporting.

How the Court Reasoned

Age of the victim. The High Court disposed of the age argument at the outset. Documents — including the SSLC book (Ext.P2) and the birth certificate (Ext.P6) proved through the Registrar of Birth and Death, Maradu Municipality — established the victim’s date of birth as 11 January 2002. The court held that the victim was below 18 years and qualified as a “child” under Section 2(1)(d) of the POCSO Act. The contention that she was nearly 18 was of no legal significance.

Delay in filing the FIR. The court found that the trial court had adequately addressed the delay in paragraphs 62 to 69 of its judgment, relying on State of Punjab v. Gurbit Singh and Ors. [1996 SCC (2) 384] and Maharashtra v. Chandraprakash Kewal Chand Jain [1990 KHC 737]. The High Court agreed that a minor victim who is threatened by the accused and fears the accused’s associates cannot realistically be expected to disclose sexual assault immediately. The delay was sufficiently explained and did not undermine the prosecution case.

Victim’s testimony and the “sterling witness” standard. The appellant relied on Rai Sandeep v. State (NCT of Delhi) [(2012) 8 SCC 21] to argue that the victim’s evidence had not been subjected to the rigorous scrutiny required. The court examined the trial record and found that the Special Judge had conducted a voir dire examination, put nine questions to the victim to assess her competence, and recorded her evidence only after being satisfied she could give rational answers. The court found no deviation in the trial court’s appreciation of evidence. The victim had consistently identified the vibrating machine and the penis-like attachment (MO1 and MO2) as the instruments used, and the recovery of these material objects under seizure mahazar Ext.P16 was not disputed by the accused.

The core legal question: does placing a vibrating object on the vaginal orifice constitute penetrative sexual assault? This was the principal legal issue. The State Brief argued that since the victim had not stated before the police that the vibrator was pressed onto her vagina — only saying so in court — the allegation of insertion could not be accepted.

The High Court analysed Section 3(b) of the POCSO Act and Section 375(b) of the IPC together. Section 3(b) defines penetrative sexual assault to include inserting “to any extent” any object, not being the penis, into the vagina of a child. The court held that the statutory phrase “to any extent” is the operative language. Placing a vibrating machine on the orifice of the vagina — that is, on the labia majora or vulva — while the machine was in the vibrating condition with sufficient power to penetrate, was itself sufficient to constitute insertion within the meaning of Section 3(b). The court observed that the vibrating mode of the machine meant that penetration of the vaginal orifice would occur even where the victim resisted and felt only brief contact. The omission in the police statement about pressing therefore did not invalidate the conviction, because the statutory threshold did not require full penetration or a specific depth.

The court applied identical reasoning to Section 375(b) IPC, which uses comparable language, and confirmed the conviction under Section 376(1) read with Section 375(b) as well.

Plea of alibi. The appellant claimed that on 20 July 2019 he, the second accused, and several others had attended a wedding at MCP International Convention Centre, Irinjalakkuda, and returned to the second accused’s residence only at 4.30 p.m. DW1 (a videographer), DW2 (a retired DIG), and DW3 (the bridegroom) were examined in support. DW1 admitted a photograph was taken at a marriage function but could not confirm the date as 20 July 2019. DW2 denied having gone to the marriage on that date with the accused. DW3 identified himself in photographs but could not identify the other persons. The photographs themselves were not admitted in evidence for want of proof of authenticity.

The appellant also produced a mobile phone with a Google Maps timeline CD purporting to show his location on 20 July 2019, but neither the phone nor the CD was tendered in evidence in the manner known to law. The court held that the trial court was correct in not acting upon material not properly in evidence.

The High Court affirmed the trial court’s conclusion that a plea of alibi requires reliable, convincing, and cogent evidence ruling out the accused’s presence at the place of occurrence without any iota of doubt. The defence fell short of that standard.

Non-examination of the mother and sister-in-law. The court agreed with the trial court that the victim’s mother had no direct knowledge of the incident — the victim had deliberately not told her — and the sister-in-law’s evidence was of limited independent significance. The failure to examine them did not create a gap in the prosecution case.

Other offences. The court found the ingredients for Section 354B (assault or use of criminal force with intent to disrobe) and Section 506(i) (criminal intimidation) were also established on the evidence, and upheld the convictions for those offences without interference.

On Sentence

The appellant sought a reduction in sentence. The High Court declined. Section 4(1) read with Section 3(b) of the POCSO Act prescribes a minimum sentence of ten years which may extend to imprisonment for life. The trial court had imposed exactly the statutory minimum. The court held that no further reduction was legally permissible and rejected the plea for leniency.

Order

The criminal appeal was dismissed. The conviction and sentence imposed by the Fast Track Special Court, Perumbavoor in SC No.1 of 2022 were confirmed in their entirety. The Registry was directed to forward a copy of the judgment to the Special Court for information and further steps.