Kerala High Court
Xxxxxx vs State Of Kerala on 6 July, 2026
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CRL.A NO. 1391 OF 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 6TH DAY OF JULY 2026 / 15TH ASHADHA, 1948
CRL.A NO. 1391 OF 2022
CRIME NO.452/2021 OF CHALISSERY POLICE STATION, PALAKKAD
AGAINST THE JUDGMENT DATED IN SC NO.841 OF 2021 OF
FAST TRACK SPECIAL COURT, PATTAMBI
APPELLANT/ACCUSED:
XXXX
XXXX
XXXX
BY ADVS.
SRI.P.MOHAMED SABAH
SRI.LIBIN STANLEY
SMT.SAIPOOJA
SRI.SADIK ISMAYIL
SMT.R.GAYATHRI
SRI.M.MAHIN HAMZA
SHRI.RAYEES P.
SHRI.ALWIN JOSEPH
SHRI.BENSON AMBROSE
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
SRI.SHAHIB, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
06.07.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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CR
JUDGMENT
Dated this the 6th day of July, 2026
Judgment dated 03.09.2022 in S.C.No.841/2021 on
the files of the Fast Track Special Court, Pattambi, is under
challenge in this appeal at the instance of the accused in the
above case.
2. Heard the learned counsel for the
appellant/accused and the learned Public Prosecutor in
detail. Perused the verdict under challenge.
3. The prosecution case is that, at about 2.00
am on 01.10.2021, the accused, who is the father of the
minor victim (CW1), aged 14 years 4 months and 8 days,
exhibited his naked body before the minor victim, from the
hall of the rented quarter bearing No.6/193 of Nagalassery
Grama Panchayath, where the minor victim was residing with
her family, including the accused. It is alleged that the
accused rubbed his sexual organ on the face of the minor
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victim, thereby sexually harassed her. It is further alleged that
accused had exhibited his sexual organ and nude body in
front of the minor victim with an intention to outrage her
modesty. On this premise, the prosecution alleges
commission of offences punishable under Sections 354A(1)
(i) and 509 of the Indian Penal Code (hereinafter referred to
as ‘IPC‘ for short), Sections 7 r/w. 8, 9(n) r/w. 10, 11(i) r/w. 12
of the Protection of Children from Sexual Offences Act
(hereinafter referred to as ‘POCSO Act‘ for short)and Section
75 of the Juvenile Justice (Care and Protection) Act, 2015 by
the accused.
4. The learned Special Judge proceeded with
the trial. PW1 to PW11 were examined, and Exts. P1 to P17
were marked on the side of the prosecution. No evidence
was adduced on the side of the defence.
5. On evaluation of the evidence, the learned
Special Judge found that the appellant/accused had
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committed the offences punishable under Sections 354A(1)(i)
and 509 of IPC, Sections 8 r/w.7, 9(n) r/w. 10 and 12
r/w.11(i) of the POCSO Act and Section 75 of the JJ Act.
Accordingly, he was convicted and sentenced as under:
“In the result,
1) Accused is sentenced to
undergo Rigorous Imprisonment for a period of 6
years for the offence U/s.9(n) r/w. 10 of the
Protection of Children from Sexual Offences Act,
2012 and he is also sentenced to pay fine of
₹75,000/-. In default of payment of fine amount, he
shall undergo further imprisonment for a period of
six months.
2) Accused is hereby sentenced to
undergo Rigorous Imprisonment for a period of 2
years for the offence U/s. 11(i)(n) r/w. 12 of the
Protection of Children from Sexual Offences Act,
2012 and he is also sentenced to pay fine of
₹25,000/-. In default of payment of fine amount, he
shall undergo further imprisonment for a period of
two months.
3) Accused is hereby sentenced to
undergo Rigorous Imprisonment for a period of 2
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5years for the offence U/s. 75 of the Juvenile
Justice (Care and Protection) act, 2015. No
separate fine is imposed for the said offence.
4) No separate sentence is
imposed for the offence U/s.354A(1)(i) IPC, 509
IPC and Section 7 r/w. 8 of the Protection of
Children from Sexual Offences Act.
5) The fine amount if remitted or
realised, shall be given to PW3 (victim) by way of
compensation U/s.357(1)(b) Cr.P.C.
6) The accused is entitled to get
set off U/s.428 Cr.P.C. for the period he had
undergone in the jail.
7) Sentences shall run
concurrently."
6. The prime contention raised by the learned
counsel for the appellant/accused is that, in this case, as
regards the place of occurrence, no convincing evidence has
been adduced. According to her, PW3, the victim, deposed
that she was subjected to sexual assault at about 2.00 a.m.
on 01.10.2021 at their residential house and the prosecution
case also is the same. She also submitted that though
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6PW6, the Secretary, Nagalassery Panchayat, was examined
and Ext.P7 ownership certificate dated 10.12.2021, was
tendered in evidence, Ext.P7 is hit by Section 162 of the code
of Criminal Procedure. Therefore, no reliance can be given to
Ext.P7. Apart from Ext.P7, no other evidence adduced to prove
the place of occurrence, and the same has not been properly
proved. It is argued further that there was no legal relationship
between the accused and PW4, the mother of the victim. Even
though there is no legal marriage in between them, the
prosecution alleges that the accused and PW4 were co-
habiting and the victim was born out of their relationship. At the
same time, the learned counsel fairly conceded that admittedly
the accused is the biological father of PW3. Absence of medical
evidence to support the prosecution case also is pointed out to
disbelieve the evidence of PW3 and the prosecution case. It is
pointed out further that only one instance of trivial nature is the
basis on which the learned Special Judge found commission of
very serious offences punishable under Sections 354A(1)(i) and
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509 of IPC, Sections 8 r/w.7, 9(n) r/w. 10 and 12 r/w.11(i) of the
POCSO Act and Section 75 of the JJ Act. Therefore, by giving
the benefit of doubt, the appellant/accused is liable to be
acquitted.
7. The learned Public Prosecutor supported the
verdict under challenge and argued that the evidence of PW3,
supported by the evidence of PW6 and PW8, regarding the
ownership of the quarter/residence of the victim would establish
the place of occurrence as quarter No.6/193, where the sexual
assault took place, which is near to building No.6/190 as
deposed by PW8. According to him, there is no reason to
disbelieve evidence of PW3, supported by the evidence of PW6
and PW8, and the verdict impugned does not require any
interference.
8. Having considered the rival submissions,
points arise for consideration are,
1. Whether the Special Court went wrong in holding
that the accused committed the offence
punishable under Section 354A(1)(i) of IPC?
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2. Whether the Special Court went wrong in
holding that the accused committed offence
punishable under Section 509 of IPC?
3. Whether the Special Court went wrong in
holding that the accused committed the offence
punishable under Section 7 r/w. 8 of the
POCSO Act?
4. Whether the Special Court went wrong in
holding that the accused committed the offence
punishable under Section 9(n) r/w.10 of the
POCSO Act?
5. Whether the Special Court went wrong in
holding that the accused committed the offence
punishable under Section 11(i) r/w. 12 of teh
POCSO Act?
6. Whether the Special Court went wrong in
holding that the accused committed the offence
punishable under Section 75 of teh JJ Act?
7. Whether the impugned verdict would require
any interference by this Court.
8. The order to be passed.
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9. Point Nos.1 to 8
In this case, the prime witness is PW3, who is the
victim. According to her, she lodged a complaint before the
Chalissery Police on 01.10.2021 and a crime was registered
based on her statement recorded by the woman police
constable. Her mother accompanied her at the time of
lodging the complaint. According to the minor victim, at the
time of occurrence, she along with her mother, father (the
accused) and brother, had been residing in a quarter. She
lodged the complaint against her father. She deposed that at
2.00 a.m. on the previous day, while she was sleeping in the
hall room, the father reached near her and rubbed his penis
on her face in an undressed condition. Soon she found that
her mother, along with younger brother, was sleeping in the
next room, and when her father rubbed his penis on her
face, she woke up and called her mother. Soon the accused
ran towards the kitchen. When the mother reached, she
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informed her about the occurrence and the mother sent out
the father from the room. According to her, her father was in
the habit of consuming liquor, and on the date of occurrence,
he had consumed liquor. She also deposed that on the date
of occurrence, her father reached the quarter at 11.30 pm.
She further deposed that one or two years ago, he had
touched on her breast during night. However, she did not
divulge the same to the mother or the police. She deposed
about her examination at the hospital and giving statement
regarding the occurrence before the doctor. She also
deposed that she had hesitated examination of herself by the
doctor, as nothing to be examined since the allegation was
only regarding rubbing of the penis of the accused on her
face. She also deposed that Ext.P3 is the statement given by
her before the police and Ext.P4 is the statement given by
her before the Magistrate. During cross-examination, when a
question was asked as to whether she disliked his father, she
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replied that she disliked him when he consumed alcohol,
otherwise, she liked him. According to her, they used to
reside in rental houses and there was no difference of
opinion between her father and mother, though they used to
make quarrel when the father would reach the house after
consuming alcohol. During cross-examination, PW3 deposed
about some quarrel in between her father and mother on the
date of occurrence.
10. In continuation to the evidence of PW3, the
prosecution examined PW4, the mother of the victim.
According to her, accused is her husband and the date of
birth of her daughter is 13.05.2007. She deposed that she
used to go for work in various houses and her husband was
a coolie worker. She had been residing with the accused and
children in the rental quarter at Vavannur. According to her,
PW3 had given a complaint before the Chalissery police
station and she had accompanied her. She further deposed
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that her daughter had stated the facts before the Woman
Police Officer on 01.10.2021. She testified further that on the
previous day, that is on 30.09.2021, accused came to the
house after consuming liquor and while her daughter was
sleeping, he had rubbed on her right cheek with his penis
and he was not wearing any dress. She was sleeping at the
room with her younger son and her daughter was sleeping in
the hall. She deposed that her husband (accused) used to
consume liquor on every day. She deposed that on the date
of the incident, her husband had reached the house at 11.00
p.m., after consuming liquor. She had identified Ext. P3 F.I.
Statement given by her daughter which was signed by her
also. According to PW4, when her husband had rubbed his
penis on the cheek of PW3 (victim), her daughter had cried.
On hearing the same, she had rushed towards her and at
once her husband ran away to the kitchen. When she had
seen the accused, he was naked. There was light in the
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kitchen. According to her, she had sent out the accused and
had locked the grill at about 2.00 p.m. She deposed that she
had accompanied her daughter for medical examination and
also for giving statement before the Magistrate. She had
produced the dress of her daughter before the police.
According to her, police had come to her house for inspection
of the hall. She had signed in Ext.P5 scene mahazer and Ext.
P5 also identified by her.
11. During cross examination she deposed that
accused and herself belonged to different communities and
there was no legal marriage. She deposed that they were
living together. She admitted that they used to quarrel.
According to her, after birth of one child, accused had started
to consume liquor. She deposed that after instituting the
case, she had filed a maintenance case against the accused.
12. In this case, Ext.P6, the birth certificate of
PW3, was tendered in evidence through PW5, and she
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supported the same showing the date of birth of the victim as
13.05.2007. Apart from Ext.P6, PW11, the Headmistress of
DVM LP School, produced Ext.P17, school admission
register pertaining to PW3, which also would suggest that the
date of birth of the victim was on 13.05.2007. In fact, no
dispute was raised regarding the juvenility of the victim in any
manner. Otherwise, the same is proved by the prosecution
by the evidence discussed.
13. In the instant case, the prime contention
raised by the learned counsel for the appellant/accused is
non-proof of place of occurrence with certainty by the
prosecution. It is relevant to note that by producing Ext.P7
through PW6, the prosecution attempted to prove that
quarter having building No.6/193 was one among the quarter
where the accused, PW3, PW4 and the younger brother of
PW3 resided during the relevant time. Even though it is
argued by the learned counsel for the appellant/accused that
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Ext.P7 is hit by Section 162 of the Evidence Act, during cross-
examination of PW6, it was extracted that building No.6/193 was
the place of occurrence. Even eschewing Ext.P7 certificate from
evidence, the evidence of PW6 would suggest that building No.
6/193, was owned by PW8 who supported the prosecution case
regarding entrustment of the quarter to the accused and his
family and their residence at the time of occurrence.
14. PW8, who is the owner of the place of
occurrence, deposed that at the time of occurrence, the
accused, his wife and children were resided in a quarter owned
by her and the same was given for rent from two months prior
to the occurrence and the accused discontinued his residence
therein, after the occurrence, though the wife and two children
continued their residence.
15. As regards the substantial evidence given by
PW8 to the effect that the residence of family of PW3, along
with the accused, no cross-examination was effected, though
document showing the rental arrangement was only
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questioned. According to PW8, on getting the photocopy of
the Identification proof, they were permitted to stay at the
quarter and no other document was executed. In fact, the
evidence of PW3, well supported by the PW8, the owner of
the quarter, in addition to the evidence of PW6, would
substantiate that the place of occurrence is quarter No.6/193.
Therefore, the contention raised by the learned counsel for
the appellant/accused that the prosecution failed to prove the
place of occurrence with certainty is found to be
unsustainable and is negatived.
16. It is true that as per the evidence of PW3,
only one occurrence spoken by her and the previous
occurrence stated by her one or two years ago not disclosed
by her to her mother or to the police.
17. In this case, PW1, Jr. consultant, Taluk
Head Quarters Hospital, Ottapalam, who examined the victim
at 7.40 pm on 01.10.2021 and issued Ext.P1 certificate
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deposed about the narration of the occurrence by the victim
while she was examined. According to the doctor, she did not
conduct any physical examination and no consent was given
by her. Considering the nature of allegation that the accused
rubbed his penis on the face of the victim, in fact, medical
examination would not have much relevance, even though it
is argued by the learned counsel for the appellant/accused
that medical evidence does not support the prosecution case.
18. Regarding potency of the accused, Ext.P2
potency certificate, suggesting that the accused was capable
of performing sexual acts, was tendered in evidence through
PW2, the Medical Officer, Taluk Hospital, Pattambi, as on
15.10.2021, who had examined the accused at 1.15 pm on
the said date.
19. Section 7 of the POCSO Act defines sexual
assault and it has been provided as under:
“7. Sexual assault.–Whoever, with sexual intent
touches the vagina, penis, anus or breast of the
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18child or makes the child touch the vagina, penis,
anus or breast of such person or any other person,
or does any other act with sexual intent which
involves physical contact without penetration is said
to commit sexual assault.”
20. Section 8 of the POCSO Act deals with the
punishment for committing the offence under Section 7 of the
POCSO Act and the same provides as under:
“8. Punishment for sexual assault.–
Whoever, commits sexual assault, shall be punished
with imprisonment of either description for a term
which shall not be less than three years but which
may extend to five years, and shall also be liable to
fine.”
21. While tracing the ingredients to find out the
offence under Section 7 of the POCSO Act, it has several
parts. The first part provides that whoever, with sexual intent,
touches the vagina, penis, anus, or breast of the child. The
second part is making the child touch the vagina, penis,
anus, or breast of such person or any other person. The third
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part is doing any other act with sexual intent which involves
physical contact without penetration. Here, the specific
allegation is that, the accused touched or rubbed his penis on
the face of the victim, in an undressed condition, and the
same is an act come within the ambit of Section 7 of the
POCSO Act, involving physical contact without penetration.
Therefore, going by the evidence of PW3, the offence
defined under Section 7 of the POCSO Act is established by
the prosecution.
22. Section 9 of the POCSO Act deals with
aggravated sexual assault. Section 9(n) of the POCSO Act
provides that whoever, being a relative of the child through
blood or adoption or marriage or guardianship or in foster
care, or having domestic relationship with a parent of the
child, or who is living in the same or shared household with
the child, commits sexual assault on such child.
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23. The evidence discussed, in fact, clearly
established the offence under Section 9(n) of the PoCSO
Act. Thus, it appears that the learned Special Judge is right
in finding that the accused/appellant, who is none other than
the father of the victim, committed offences punishable under
Sections 7 r/w.8, 9 r/w.10 and 11(i) r/w.12 of the POCSO
Act, Section 354A(1)(i) and 506(i) of IPC and under Section
75 of the JJ Act, though no separate sentence imposed for
the offences under Sections 354A(1)(i) and 509 IPC and
under Section 7 r/w.8 of the POCSO Act. The above
discussion would lead to the conclusion that the conviction
recorded by the learned Special Judge does not require any
interference.
24. The learned counsel for the
appellant/accused pressed for leniency in the matter of
sentence. Here, the maximum substantive sentence imposed
by the learned Special Judge is six years of rigorous
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imprisonment for the offence punishable under Section 9(n)
r/w. 10 of the PoCSO Act. The minimum punishment
provided as per Section 10 of the POCSO Act is rigorous
imprisonment for a term not less than five years. Therefore,
in the interest of justice, the substantive sentence of six years
imposed for the offence under Section 9(n) of the POCSO Act
can be reduced to five years, while confirming the fine and
default sentence imposed for the said offence and all other
offences intact.
25. In the result, this appeal is allowed in part.
Conviction imposed by the special Court on the
appellant/accused is confirmed. The sentence is interfered and
modified as under:
1. The appellant/accused is sentenced to undergo
rigorous imprisonment for a period of five years and
to pay a fine of ₹75,000/- (Rupees seventy five
thousand only) for the offence punishable under
Section 9(n) r/w. 10 of the POCSO Act. In default of
payment of fine, the appellant/accused shall
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22undergo further imprisonment for a period of six
months.
2. The sentence of fine, the default sentence, and the
sentences imposed for all the other offences shall
remain unaltered.
26. The substantive sentence shall run
concurrently and the default sentence shall run separately. Set
off is allowed for the period of detention already undergone by
the accused.
27. The order suspending sentence and granting
bail to the accused stands vacated, with direction to the
accused to appear before the special court forthwith to undergo
the modified sentence, failing which, the Special Court is
directed to execute the sentence, without fail.
Registry is directed to forward a copy of this judgment
to the Special Court, forthwith for information and compliance.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
