REDACTED vs STATE OF KERALA

CNR : KLHC010098512022

2026:KER:80053
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
WEDNESDAY, THE 14 DAY OF OCTOBER 2026 / 22ND ASWINA, 1948
CRL.A NO. 164 OF 2022
CRIME NO.1269/2018 OF Kuruppampady Police Station, Ernakulam
SC NO.23 OF 2019 OF FAST TRACK SPECIAL COURT, PERUMBAVOOR DATED
06.07.2021
APPELLANT:
XXXXXXXXXX
XXXXXXXXXX
BY ADV.SHRI.KALESH K.V.
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM, PIN - 682031
BY SR.PUBLIC PROSECUTOR SRI.SAJEEV P K
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.09.2026,
THE COURT ON 14.10.2026 DELIVERED THE FOLLOWING:

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CR
JUDGMENT
th
Dated this the 14 day of October, 2026
This appeal has been filed by the sole accused in
S.C.No.23/2019 on the files of the Special Court under the Protection
of Children from Sexual Offences Act, 2012 (for short, the PoCSO
Act’ hereinafter), Perumbavoor, challenging the judgment rendered
therein dated 06.07.2021.
2. Heard the learned counsel for the appellant/accused and
the learned Public Prosecutor. Perused the judgment under
challenge along with the records of the Special Court.
3. Here, the prosecution alleges commission of offences
punishable under Sections 376(2)(f) and (n), 376AB and 324 of the
Indian Penal Code (for short, ‘the IPC’ hereinafter) and Sections 3(a)
and (b) r/w 4, 5(l),(m) and (n) r/w 6, and 9(m) and (n) r/w 10 of the

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PoCSO Act and Section 75 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (for short, ‘the JJ Act’ hereinafter),
by the appellant/accused.
4. The prosecution allegation is that the appellant/accused
subjected his own daughter, aged 5 years to penetrative sexual
assault in a night between 05.10.2018 and 05.11.2018, and also had
committed cruelty towards his son, aged 4 years.
5. On getting the final report filed by the Special Court, the
Special Court took cognizance for the aforesaid offences. Thereafter,
completed pre-trial formalities and recorded evidence confined to
that of PW1 to PW20 and Exts.P1 to P12(a) on the side of the
prosecution. No defence evidence was adduced.
6. On appreciation of the evidence, the learned Special Judge
found that the appellant/accused committed offences punishable
under Sections 376(2)(f), 376AB and 323 of the IPC, Sections 3(b)
and 5(m) r/w 6, 3(b) and 5(n) r/w 6, 7 and 9(m) r/w 10, and 7 and

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9(n) r/w 10 of the PoCSO Act and Section 75 of the JJ Act.
Accordingly, he was convicted for the said offences while acquitting
for the other offences and sentenced as under:
“In the result;
1.the convict is sentenced to undergo
rigorous imprisonment for ten (10) years
and to pay a fine of ₹ 50,000/- (rupees fifty
thousand) for the offence punishable
under S.376(2)(f) of the IPC, and in default
of payment of fine, to undergo Rigorous
Imprisonment for a further period of six
(6) months;
2.the convict is further sentenced to
undergo rigorous imprisonment for
twenty (20) years and to pay a fine of
₹ 10,00,000/- (rupees ten lakhs) for the
offence U/S.376-AB of the IPC, and in
default of payment of fine, to undergo
Rigorous Imprisonment for a further
period of three (3) years;
3.the convict is further sentenced to

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undergo rigorous imprisonment for five
(5) years each and to pay a fine of
₹10,000/- (rupees ten thousand) each, for
the offences U/Ss.9(m) and (n) r/w S.10 of
the Protection of Children from Sexual
Offences Act and in default of payment of
fine, to undergo Rigorous Imprisonment
for a further period of three (3) months
each;
4.the convict is further sentenced to
undergo rigorous imprisonment for one (1)
year each for the offences U/s.323 IPC,
committed against PWs 1 and 2.
5.the convict is sentenced to undergo
rigorous imprisonment for one (1) year
each committed against PWs 1 and 2, and
to pay a fine of ₹50,000/- (fifty thousand)
each U/s.75 of the Juvenile Justice (Care
and Protection of Children) Act, 2015, and
in default of payment of fine, to undergo
Rigorous Imprisonment for a further
period of three (3) months each;

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6. the substantive sentence of
imprisonment shall run concurrently;
7.the convict is allowed to set off U/s.428 of
Cr.P.C for the period of detention already
undergone by him as an under trial
prisoner, from 15.11.2018 to 2.05.2019,
against the substantive sentence of
imprisonment;
8.the mobile phone seized and produced
from the accused, being his personal
property, is ordered to be returned to him;
9. in default of payment of fine, issue a
warrant to the District Collector,
Ernakulam authorising him to realise the
fine amounts as arrears of land revenue
from the movable or immovable
properties, or both, of the convict, U/s 421
(1) (b) Cr.PC;
10.if the fine amount is paid or realised, as
ordered above, it shall be released to PW1
and PW2, the victims, as compensation U/s
357(1)(b).

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11.He is found not guilty of offences
U/Ss.376(2),(n) and 324 IPC and 3(a) and
5(l) r/w 6 of the PoCSO Act and acquitted
U/s.235(1) Cr.PC.”
7. The learned counsel for the appellant/accused argued that
the prosecution failed to prove the allegation of sexual assault,
including penetrative sexual assault, beyond reasonable doubt, and
that the learned Special Judge gave much emphasis to the evidence
of PW1 and PW2, who are the minor children of the
appellant/accused, even though PW8, the Doctor did not give
evidence in conformity with the prosecution case. Further, the
learned Special Judge failed to appreciate the evidence given by
PW3, the grand mother of PW1 and PW2 (the victims). It is pointed
out that as per the version of PW3, the victim was hospitalized for
three days due to urinary infection. It is pointed out further that the
court below relied on the hearsay evidence of PW13, C.W.C. Member

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apart from relying on the evidence of the other witnesses. It is also
pointed out that the evidence of PW1 and PW2 are contrary.
According to him, at the instance of PW13, the C.W.C. Member, the
accused was made a scapegoat and the totality of evidence would not
justify the finding of the Special Court and the verdict would require
interference.
8. Whereas, the learned Public Prosecutor strongly opposed
the contention raised by the learned counsel for the
appellant/accused. According to the learned Public Prosecutor, the
victim, examined as PW1, had given categorical evidence supporting
the prosecution case, apart from other evidence including that of
PW13 and PW8, the Doctor. In such a case, the contention raised by
the learned counsel for the appellant/accused to unsustain the
verdict could not be found acceptable. It is also pointed out that the
appellant/accused has no case that PW1 and PW2, his own children,
have any enmity towards him. Thus, he pressed for confirmation of

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the verdict impugned. The learned Public Prosecutor placed a
decision in Bhanei Prasad @ Raju v. State of Himachal
Pradesh reported in [2025 (6) KHC 490] to contend that
incestuous sexual violence committed by a parent is a distinct
category of offence that tears through foundational fabric of familial
trust and must invite the severest condemnation in both language
and sentence. Apart from that, the learned Public Prosecutor placed
decision of this Court in Joseph @ Sabu v. State of Kerala
reported in [2026 (1) KLD 801] wherein this Court held that
unchallenged oral testimony of victim and her mother is sufficient to
prove the age of the victim to sustain a conviction under the PoCSO
Act even if the prosecution fails to prove the age by documentary
evidence relying on a Division Bench judgment of this Court in Biju
v. State of Kerala reported in [2024 (2) KHC 297].
9. Adverting to the rival contentions, the points arise for
consideration are;

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i) Whether the Special Court is right in holding
that the appellant/accused committed offence punishable
under Section 376(2)(f) of the IPC?
ii) Whether the Special Court is justified in
holding that the appellant/accused committed offence
punishable under Section 376AB of the IPC?
iii) Whether the Special Court is erred in holding
that the appellant/accused committed offence punishable
under Section 323 of the IPC?
iv) Whether the Special Court went wrong in
holding that the appellant/accused committed
offences punishable under Sections 3(b) and 5(m) r/w
6 of the PoCSO Act?
v) Whether the Special Court is right in
holding that the appellant/accused committed
offences punishable under Sections 3(b) and 5(n) r/w

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6 of the PoCSO Act?
vi) Whether the Special Court is justified in
holding that the appellant/accused committed
offences punishable under Sections 7 and 9(m) r/w 10
of the PoCSO Act?
vii) Whether the Special Court erred in holding
that the appellant/accused committed offences
punishable under Sections 7 and 9(n) r/w 10 of the
PoCSO Act?
viii) Whether the Special Court is justified in
holding that the appellant/accused committed offence
punishable under Section 75 of the JJ Act?
ix) Whether the verdict would require interference?
x) The order to be passed?
Point Nos.(i) to (x)

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10. Here, PW1, who was aged 8 years at the time of
examination on 25.11.2020, was subjected to in camera examination
after satisfying the competency to give evidence in view of the voir
dire examination conducted by the learned Special Judge. During
chief examination, PW1 given evidence that, while she was sleeping
along with the accused, he had fondled her chest, inserted his finger
into her urinating area and penetrated his penis into her mouth. She
used to sleep along with the accused, while her mother used to sleep
along with her brother in another room. On the very next morning of
the alleged incident, she had shared the matter with her mother, but
she did not remember what her mother had replied. On the next
night, she slept with her mother of her own volition, and nobody had
insisted her to do so. She did not like her mother for the reason that
her mother had intimacy with her brother and did not pay any
attention to her affairs. But, she liked her father, and therefore, she
used to sleep with him from the time she could remember. Her father

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and mother frequently quarrelled with each other and did not talk to
each other. Her father used to physically assault her mother. He
would consume alcohol daily, which she could understand from its
smell. He used to beat her with a stick, and she felt pain. The sexual
overt acts were committed on a single night alone. She admitted
having given a statement to a lady who had recorded the same. As
the FIS did not contain her thumb impression or any identifying
mark, it was not marked through her. In cross-examination, PW1
stated that PW3, her grandmother, was also residing in the same
house and that her mother, who was a housemaid, was staying in the
house where she was working. When her mother remained absent
from the house, she and her brother used to sleep with PW3. As she
had felt pain in her urinating area, her grandmother had taken her to
the hospital, where she had undergone treatment as an inpatient.
She answered in the affirmative to the question put to her as to
whether her hospitalisation was before the alleged abuse. According

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to her, she did not feel itching in the urinating area, and the
hospitalization was for the pain therein. She testified further that she
had given statement to a woman police officer, in which she had
stated that her father had committed the above-mentioned acts. In
response to the question put by the learned defence counsel as to
who had told her to state that her father had committed those acts,
she replied that her father had really committed the same. When a
question was put by the court, she deposed that she did not like her
father after the incident. She denied the suggestion that her father
had beaten her when she became naughty and replied that her father
used to beat her when she refused his demand to sleep with him.
11. PW2 is another victim and son of the appellant/accused.
PW2
As far as the offence under Section 75 of the JJ Act is concerned,
testified that his father used to beat him and he did not know for what he
had beaten so. He also deposed that the appellant/accused
also beat PW1 and he had witnessed the same. At the same time, he

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deposed that he had like towards his father. Then, he deposed that
he did not want to see the father at present. He deposed further that
PW1 laid along with the father and mother. Supporting the version
of PW1 and PW2, PW3, the mother of the appellant/accused also
given evidence. According to her, the appellant/accused is her son
and her son and daughter-in-law lived in Pullukuzhy.
12. PW4 is the mother of PWs 1 and 2. She testified that she
came to know about the incident when PW1 had disclosed the
incident to the police. She admitted having given a statement to the
police to the effect that PW1 was sleeping with the accused, when she
was in the house.
13. PWs 5 and 6 were the neighbours of the accused. PW5
testified that both the children of the accused used to rush to her
house and tell her that their father had beaten them. She did not
witness the same, as the act had been committed inside the house. To
the solitary question asked in cross-examination, she replied that she

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had not seen the children being beaten up. PW6 gave evidence that
she had only hearsay knowledge about the alleged incidents and that
the children of the accused had never told her anything.
14. PW7 deposed that he was present in the house at the time
of preparation of Ext.P1 mahazar by the police. The police had read
out the contents of the mahazar to him, and he identified his
signature in Ext.P1.
15. The medical evidence in this case sprout from the
evidence of PW8, the Doctor in Gynecology attached to the General
Hospital, Muvattupuzha. PW8 testified that she had examined PW1
at 7.20 p.m. on 05.11.2018. The victim had told her that her father
had put his fingers into her vagina, pressed her breast and put his
penis into her mouth, about one and a half months prior to the date
of examination. On examination of her genital area, the Doctor had
found the following:
1. An abrasion measuring 1 × 1 cm near the labia minora.

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2.The vaginal opening in the vestibule was larger than usual.
3.The vagina was congested (red in colour due to inflammation or
infection).
Her hymen was intact. The vaginal opening of the child was found to
be larger than normal, considering her age. The Doctor opined that
her findings were consistent with the alleged sexual acts. Her opinion
was based on the fact that the vagina was congested, there was an
abrasion on the labia minora, and the vestibular opening was larger
than normal. She clarified that injury No.1 had been found on the
labia minora. However, serial No.7 of the certificate was intended for
recording any injury in the vestibular area, from which she could say
that injury No.1 had been inside the labia minora, as the vestibule
was the surface inside the labia minora. She had experience in
examining rape victims since 2010. The examination of the child in
this case had remained fresh in her mind even at the time of her
evidence because, in her experience, it was the first time she had

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examined a child of such a tender age in a case in which the
allegation was against her own father. In cross-examination, the
Doctor answered that the child had a history of infection in her
private part. She also replied that injury No.1 was likely to have been
caused by scratching due to the infection. The Doctor clarified that
there were two openings in the vestibule, namely, the urethral
opening and the vaginal opening, and that, by recording that the
vaginal vestibule was large, she had actually meant that the vaginal
opening was large, since the vestibular surface itself could not
become larger. According to the Doctor, the vaginal opening of the
victim was larger than normal considering her age, and the white
discharge present in her vagina was likely to have occurred due to
infection. In re-examination, the Doctor stated that the infection and
discharge in the vagina were likely to have occurred as a result of the
alleged incident and that whether the size of the vaginal opening was
normal vis-a-vis the age of the child could be ascertained only

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through experience, as medical science did not prescribe its size.
16. PW9, the Doctor attached to the Taluk Headquarters
Hospital, Perumbavoor, stated that she had examined the accused on
14.11.2018 and issued Ext.P3 certificate, stating that there was
nothing to suggest that he was incapable of performing any sexual
act. This opinion remained unchallenged.
17. The evidence of PW10, the Village Officer of
Rayamangalam Village, showed that, at the request of the
Koovappady Police, he had visited the house situated in Uliyampalli
Lakshamveedu Colony, involved in Crime No.1269/2018 of
Koovappady Police Station, and prepared Ext.P5 site plan, noting the
room as per the mahazar prepared by the police. PW12, the Secretary
of Rayamangalam Grama Panchayat, deposed that he had issued
Ext.P6 extract of the Building Tax Assessment Register in respect of
the house bearing No.796-B in Ward No.13 of the said Panchayat. As
per the said document, the house stood in the joint names of the

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accused and his mother, which also remained unchallenged.
18. PW13, a Member of the Child Welfare Committee (C.W.C.
Member), Ernakulam, in 2018 identified her signature on the F.I.
Statement of the victim recorded by the police in this case.
Overruling the objection of the learned defence counsel that it should
not be marked through the witness, the FIS was marked as Ext.P7.
She further stated that the C.W.C. had received a message over the
phone that the victim was being abused by her father and that,
thereafter, at the intervention of the C.W.C., the child had been
removed from her home to the Children's Home at Pulluvazhy and
thereafter to the Children's Home of the C.W.C. at Kakkanad. At the
CWC office, Ext.P7 first information statement of PW1 had been
recorded in her presence, and she had subscribed her signature on it.
She had not given any statement to the police. In cross-examination,
she replied that she had remained present at the time of recording
the statement of the victim in her capacity as a C.W.C. Member, but

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she had not produced any document showing her designation to the
police. She also stated that she had not mentioned in Ext.P7 that she
was a C.W.C. Member at that time. She denied the suggestion that
she had not been a C.W.C. Member at that time. She denied the
suggestion that PW1 had not been admitted to the Children's Home
at Kakkanad and that her statement had not been recorded at the
C.W.C. office. She explained that the reason for noting in Ext.P7 that
the statement had been recorded at the Children's Home was that the
Children's Home and the office of the C.W.C. were located in the
same building. She also denied the suggestion that she had
unnecessarily signed the FIS and that she had no capacity to remain
present and sign the FIS.
19. PW14 stated that she had recorded Ext.P7 FIS of PW1 on
05.11.2018 as per the direction of the Sub Inspector. The FIS had
been recorded at the C.W.C., Kakkanad, in the presence of the C.W.C.
Member, who had also signed the FIS. She had also taken the child to

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the Doctor for her medical examination and for getting her statement
recorded under Section 164 of the Code of Criminal Procedure (for
short, ‘the Cr.P.C.’ hereinafter) by the Magistrate. In cross-
examination, she denied the suggestion that the child had not given
any statement to her and that it had been recorded as per the
instruction of others. She had not obtained the signature of PW1 on
the FIS as she was a minor.
20. Apart form the evidence, PW16, the Sub Inspector of
Police who registered Ext.P8 FIR based on Ext.P7 FIS supported the
prosecution and entrustment of the investigation to the Circle
Inspector of Police. He also deposed about the arrest of the
appellant/accused on 14.11.2018 and his production before the court
on the next day.
21. The 164 statement of PW1 was recorded by PW17, the
Judicial First Class Magistrate, Kuruppumpady and he supported the
same and according to him, PW1 given evidence before him that

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while PW1 was sleeping with the appellant/accused, he pressed on
her urinating area, he sipped and fondled her breast, inserted his
penis into her mouth and beat her. In cross-examination, the learned
Magistrate denied the suggestion that PW1 did not give such a
statement and it was recorded as required by the police.
22. PW18, the caretaker of Sneha Jyothi Sisu Bhavan
supported signing of Ext.P1 scene mahazar in the house of PW1. She
also deposed that PW1 was under her custody since 30.10.2018.
PW19 was the Investigating Officer, who supported the investigation.
23. Here, the allegation of sexual assault is against PW1 alone
and the other allegation is that the appellant/accused used to beat
PW2. Here, no dispute raised as regards to the age of PW1 and PW2.
Rather, the same was proved through the evidence of PW20 and
Ext.P12, the extract of Admission Register showing that the date of
birth of PW1 as 21.11.2012. Evidently, PW2 is the younger brother of
PW1. Therefore, PW2 also is a child as defined under Section 2(d) of

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the PoCSO Act. Before the trial court, some dispute was raised with
regard to Ext.P12. In this regard, the learned Special Judge himself
emphasised Ext.P12(a), the name of the victim shown in Ext.P12,
while holding that Ext.P12(a) referred to PW1. Moreover, PW1 had
given evidence that she was aged 5 years on the date of occurrence.
Apart from that, Ext.P4, the extract of Birth Register relating to
prove the age, that is the reason why the learned counsel for the
appellant/accused not disputing the age of PW1 and PW2 before this
Court. On scanning the evidence of PW1, the victim of sexual assault,
her evidence was that while she was sleeping along with the
appellant/accused, the appellant/accused fondled her chest and
inserted his finger into her vagina and penetrated his penis into her
mouth. Now, the question is whether the version of PW1 in this
regard is of sterling quality to be acted upon.
24. Supporting the evidence of PW1 as regards to the
penetrative sexual assault committed by the appellant/accused,

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PW8, the Doctor attached to Gynecology Department, General
Hospital, Muvattupzha, given evidence that she had examined PW1
at 7.20 p.m. on 05.11.2018 and during her examination, the victim
PW1 disclosed that the alleged cause as the father put his fingers into
her vagina, pressed her breast and put his penis into her mouth one
and a half months prior to her examination by PW8. The Doctor
found injuries mentioned hereinabove while holding that the hymen
was intact.
25. Here, penetrative sexual assault alleged on two ways, the
first one is putting of fingers into the vagina of PW1 and second one
is insertion of penis of the appellant/accused into her mouth. It is
the well settled law that hymen intact by itself is not sufficient to hold
that there was no penetrative sexual assault, as penetrative sexual
assault could be found even cases where when slightest degree of
penetration could be found. To put it otherwise, penetration slightly
on the vaginal orifice , labia majora, or vulva alone would satisfy the

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ingredients of penetration to constitute the offence. Thus, the
evidence of PW1 coupled with the evidence of PW8 would show that
PW1, who is none other than the daughter of the appellant/accused
was subjected to penetrative sexual assault by the appellant/accused.
Even though the learned counsel for the appellant/accused pointed
out that the evidence of PW8, the Doctor is not line with the
prosecution case, any material deviation in the evidence of PW8 from
the prosecution case could not be found.
26. Here, the learned Special Judge found commission of
offence punishable under Section 75 of the JJ Act on the finding that
the appellant/accused, who had actual control over the children, had
assaulted them and had sexually abused PW1 and he would be liable
for the penal consequence provided under Section 75 of the JJ Act.
Section 75 of the JJ Act provides that whoever, having the actual
charge of, or control over, a child, assaults, abandons, abuses,
exposes or willfully neglects the child or causes or procures the child

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to be assaulted, abandoned, abused, exposed or neglected in a
manner likely to cause such child unnecessary mental or physical
suffering, shall be punishable with imprisonment for a term which
may extend to three years or with fine of one lakh rupees or with
both, and the same include assault by a person having actual charge
or control over the child. Therefore, the said finding is also to be
confirmed.
27. In the instant case, the evidence given by PW1, the victim,
is supported by the evidence of PW8, the Doctor, who found injuries
on her vagina to substantiate penetrative sexual assault committed
by the appellant/accused. Therefore, the contention raised by the
learned counsel for the appellant/accused to unsustain the verdict
insofar as the said finding is concerned, found to be not acceptable.
28. Thus, the evidence available would indicate that the
learned Special Judge rightly came to the conclusion that the
appellant/accused had committed offences punishable under

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Sections 376(2)(f), 376AB and 323 of the IPC, Sections 3(b) and 5(m)
r/w 6, 3(b) and 5(n) r/w 6, 7 and 9(m) r/w 10, and 7 and 9(n) r/w 10
of the PoCSO Act and Section 75 of the JJ Act, and therefore, the
conviction does not require any interference.
29. Going through the sentence imposed, it could be gathered
that the minimum sentence provided for the offence punishable
under Section 376AB of the IPC is 20 years and payment of fine,
taking into consideration of the amount, which is just and reasonable
to meet the medical expenses and rehabilitation of the victim, to be
paid as fine to the victim. Considering the sentence imposed in view
of the above statutory mandate, the sentence
imposed also does not require any interference.
Hence, this appeal fails and is dismissed by confirming the
conviction and sentence imposed by the Special Court.
Since the appellant/accused is in Jail, no other orders are
required.

CRL.A.NO.164 OF 2022 29 CNR : KLHC010098512022
2026:KER:80053
Registry is directed to forward a copy of this judgment to the
Special Court, for information and further steps.
Sd/-
A. BADHARUDEEN
JUDGE
Bb