BABY RAJ vs STATE OF KERALA
- Court
- Kerala High Court
CNR : KLHC010795722025
2026:KER:85500
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
WEDNESDAY, THE 4 DAY OF NOVEMBER 2026 / 13TH KARTHIKA,
1948
CRL.A NO. 1803 OF 2025
CRIME NO.1304/2022 OF Kollam East Police Station, Kollam
AGAINST THE JUDGMENT DATED 03.07.2025 IN SC NO.129 OF
2023 OF FAST TRACK SPECIAL COURT (POCSO), KARUNAGAPPALLY
APPELLANT/ACCUSED:
BABY RAJ, AGED 75 YEARS, S/O.RAGHAVAN, NIDHIN NIVAS,
SREE BHADRA NAGAR, FROM KANNAMATH, ULIYAKKOVIL CHERRY,
KOLLAM EAST VILLAGE, KOLLAM DISTRICT -, PIN - 691001
BY ADVS.
SHRI.PRATHEESH.P
SMT.ANJANA KANNATH
SMT.SAFNA P.S.
RESPONDENTS/STATE:
1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA AT ERNAKULAM, PIN - 682031
2 THE STATION HOUSE OFFICER, KOLLAM EAST POLICE STATION,
KOLLAM DISTRICT, PIN - 691001
OTHER PRESENT:
PP M A SHIHAB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
14.10.2026, THE COURT ON 04.11.2026 DELIVERED THE FOLLOWING:
Crl. Appeal No.1803 of 2025
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A. BADHARUDEEN, J.
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Crl. Appeal No. 1803 of 2025
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Dated this the 4th day of November, 2026
‘CR’
JUDGMENT
The judgment in S.C.No.129/2023 on the files of the Fast
Track Special Judge, Karunagappally for the trial of offences
under Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as ‘the POCSO Act’) is under challenge in
this appeal filed by the sole accused.
2. Heard the learned counsel for the appellant/accused
and the learned Public Prosecutor appearing for the prosecution.
Scrutinized the verdict impugned and the evidence available.
3. The prosecution alleges commission of offences
punishable under Sections 376(1), 376(2)(n), 506(i), 354(D)1)(i) of
the Indian Penal Code (hereinafter referred to as ‘IPC’) and
Sections 4(2) r/w 3(a), 10 r/w 9(l), 6 r/w 5(l) and 6 r/w 5(m) of the
POCSO Act by the appellant/accused. The case of the
prosecution is that the appellant/accused committed penetrative
sexual assault on PW1, the victim.
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4. The learned Special Judge framed charge for the said
offences and recorded evidence. PWs.1 to 17 were examined and
Exts.P1 to P14 were marked on the side of the prosecution. On
the side of the defence, DW1 was examined. Finally, the learned
Special Judge found that the appellant/accused had not
committed offences punishable under Section 376(2)(n) of IPC
and Section 6 r/w 5(l) of the POCSO Act and for the said offences,
the appellant was acquitted. While convicting him for the other
offences, viz., offences under Sections 376(1), 506(i) and
354(D)1)(i) of IPC and under Sections 4(2) r/w 3(a), 10 r/w 9(l), and
6 r/w 5(m) of the POCSO Act, he was sentenced as under:
“(i) The accused is sentenced to undergo Rigorous
Imprisonment for 10 years and to pay a fine of ₹1,00,000/-
(Rupees One lakh only) in default of payment of fine he shall
undergo Rigorous Imprisonment for another 12 months for the
offence punishable U/s. 376(1) of the IPC,
(ii) The accused is sentenced to undergo Rigorous
Imprisonment for one year and to pay a fine of ₹10,000/-
(Rupees Ten thousand only) in default of payment of fine he
shall undergo Rigorous Imprisonment for another one month
for the offence punishable U/s.506(1) of the IPC,
(iii) The accused is sentenced to undergo Rigorous
Imprisonment for 2 years and to pay a fine of ₹25,000/- (Rupees
Twenty Five Thousand only) in default of payment
of fine he shall undergo Rigorous Imprisonment for another 2
months for the offence punishable U/s. 354D (1)(i) of the IPC,
(iv) The accused is sentenced to undergo Rigorous
Imprisonment for 5 years and to pay a fine of ₹50,000/- (Rupees
Fifty thousand only) in default of payment of fine he shall
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undergo Rigorous imprisonment for another 4 months for the
offence punishable U/s. Sec.10 r/w 9 (1) of POCSO Act.
(v) The accused is sentenced to undergo Rigorous
Imprisonment for 20 years and to pay a fine of ₹1,00,000/-
(Rupees one lakh only) in default of payment of fine he shall
undergo Rigorous Imprisonment for another 12 months for the
offence punishable U/s. Sec.4(2) r/w 3(a) of POCSO Act.
(vi) The accused is sentenced to undergo Rigorous
Imprisonment for 20 years and to pay a fine of ₹1,00,000/-
(Rupees one Lakh only) in default of payment of fine he shall
undergo Rigorous Imprisonment for another 12 months for the
offence punishable U/s. Sec.6 r/w 5(m) of the POCSO Act.”
` 5. The learned counsel for the appellant/accused argued
that, serious allegation in this case is one occurred much prior to
the registration of FIR. According to him, the said occurrence
took place, when victim was 13 years old, but the incident was
reported to the police only in the year 2022 when she had
completed 16 years. In such circumstances, the evidence of PW1
ought not have been believed by the learned Special Judge to
hold that the prosecution was succeeded in proving the offences
found to be committed by the accused. According to him, the
evidence of PW1 is flooded with material contradictions and in
such view of the matter, the status of PW1 is not that of a sterling
witness to act upon her sole testimony. It is pointed out further
that the other witnesses examined on the side of the prosecution
are closely connected with PW1, the victim, and the prosecution
has not examined any independent witness to prove the
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prosecution allegations. It is specifically urged that, when the
evidence of PWs.1 to 3 is gone through, false implication of the
accused in this crime could not be ruled out, in a case where the
investigation is shabby and farce. According to him, the
appellant/accused, on these grounds, is entitled to get benefit of
doubts.
6. Opposing these contentions, the learned Public
Prosecutor submitted that, in the instant case, the version of
PW1 was not at all shaken during cross-examination with regard
to the occurrence, which started when she was aged 13 years and
continued till she attained the age of 16 years. According to him,
there is no delay in lodging the FIR, since the last occurrence was
immediately before registration of the FIR and the first
occurrence was at her tender age. According to the learned
Public Prosecutor, all the available witnesses in connection with
this case were examined. Therefore, non-examination of
independent witnesses would not yield to take adverse inference
against the prosecution. Thus, the learned Public Prosecutor
pressed for confirmation of the verdict.
7. 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(1) IPC?
( ii) Whether the Special Court went wrong in finding that
the appellant/accused committed the offence under Section 506(i)
IPC?
(iii) Whether the Special Court justified in holding that the
appellant/accused committed the offence under Section
354(D)(1)(i) of IPC?
(iv) Whether the Special Court erred in finding that the
appellant/accused committed the offence under Section 4(2) r/w
3(a) of the POCSO Act?
(v) Whether the Special Court is right n finding that the
appellant/accused committed the offence under Section 10 r/w
9(l) of the POCSO Act?
(vi) Whether the Special Court went wrong in holding that
the appellant/accused committed the offence under Section 6 r/w
5(m) of the POCSO Act?
(vii) Whether the verdict would require interference?
(viii) The order to be passed?
Point Nos.(i) to (viii)
8. Here, the status of PW1 as a child, as defined under
Section 2(1)(d) of the POCSO Act, is not in dispute. Otherwise,
the same is proved by the evidence of PW1 and also through
Exts.P8 and P14 documents tendered in evidence by PW13 and
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PW17, respectively, to show that the victim was a child during
the period of occurrence.
9. Coming to the question as to whether the prosecution
succeeded in proving the ingredients of the offences which the
learned Special Judge found to have been committed by the
accused, the evidence of PW1 is much relevant.
10. PW1 testified that she was born on 14.09.2006 and she
had given statement regarding the occurrence before the Kollam
East Police at the child friendly room of the Police Station on
06.12.2022. According to her, she had given statement in the
presence of Jayakumari, sister of her father, and she identified
Ext.P1 as the statement so given. According to her, when Ext.P1
was recorded, she was studying in the 10th standard. She further
deposed that, since her parents were living separately, she had
been residing with her grandparents since she was studying in
the 3rd standard. Baby (accused), a nearby resident who had no
children, was a family friend. Further, he used to visit her house
and was married. His wife used to invite her to their house, and
she used to go there. Then, Baby used to catch on her private
parts and continued the same. While she was studying in the 4th
standard, Baby brought her to his house and given sweets. Then
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he took her to the room where he had been laying. By the time
she became partially unconscious though she could remember
the subsequent events. According to her, Baby then laid her on
the bed, removed her panties and put his penis into her vagina
causing her severe pain. When she cried aloud, he masked her
mouth with his hand and threatened to kill her if she would
divulge the incident to anybody. He continued the said acts until
she reached the 7th standard. While studying in the 7th standard,
she attained puberty and thereafter stayed at her aunt’s house.
Later, when she attended a class in the school, there was a class
regarding ‘good touch’ and ‘bad touch’. Then she understood
that touching a person’s private parts was wrong. According to
her, when she was studying in the 9th standard while she was
returning from school along with her friend, Shehna, from the
railway overbridge at Kollam, the accused approached them on
his bike and stopped near them. He then asked her to enter the
bike, stating that he would drop her at her house. She refused to
heed the demand of the accused, but he repeatedly compelled
her. Then her friend intervened and sent him back. Later, she
had informed the above overt acts to another friend, while she
was studying in the 10th standard. Thereafter, that friend
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informed the same to her mother, who, in turn, informed Blazy,
the class teacher. On the next day, when she went to school, she
was given counseling in a separate room, where she disclosed the
entire overt acts. Thereafter, the school authorities informed her
family members about the incident, who came to know about the
same only at that juncture. Thereafter, the counselling teacher
reported the incident to Childline and the police station. PW1
further deposed that she had not disclosed the incident earlier
because the accused had threatened to kill her. She also stated
that she had given a statement before the Magistrate regarding
the incident.
11. During cross-examination, she admitted that she had
been studying in Vimalahridaya Girls Higher Secondary School
during the period. She stated further that she did not disclose in
Ext.P1 statement regarding the class whereby she was made
aware of ‘good touch’ and ‘bad touch’. She admitted that there
was a case between her parents before the Family Court, Kollam.
When it was pointed out to her that, she had not mentioned in
Ext. P1 about the assault allegedly committed on her, while she
was studying in the 10th standard, she stated that the omission
might have occurred due to tension. She reiterated that she had
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been subjected to sexual assaults as stated above. She also
stated that she did not state in Ext.P1 regarding counselling, as
stated before the Court. During cross-examination, it was
suggested to PW1 that due to animosity between her aunt,
Jayakumari, and the accused, a case was foisted at her instance,
it was emphatically denied by PW1. During further
cross-examination, she reiterated that the accused inserted his
penis into her vagina and the accused repeatedly touched on her
private parts.
12. PW2, the counselling teacher examined in this case,
corroborated the testimony of PW1 regarding the counselling
provided to her, the disclosure of the incident, and the class
conducted at the school on ‘good touch’ and ‘bad touch’.
13. PW3, the mother of the classmate of PW1, was
examined on the side of prosecution. She deposed in support of
the prosecution. Her version was that, when she visited the
house of PW1, during Onam in 2022, PW1 told her that an uncle
residing nearby was assaulting her. Accordingly, she informed
the class teacher about the matter, and the class teacher agreed
to do the needful thereafter. According to PW3, the mother of
PW1 abandoned her and her father had been laid up. Therefore,
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she used to go to the house to give something to PW1 and also
whenever PW1 faced with puzzles . During cross-examination,
PW3 testified that PW1 had not disclosed any further details
regarding the occurrence to her.
14. Ext.P2 tendered in this case is the scene mahazar
prepared on 08.12.2022 and PW4 who signed in Ext.P2 supported
its preparation at the house of Baby Raj (accused herein).
15. Dr. Anila G., the Consultant O & G at Government
Victoria Hospital, Kollam was examined as PW5 to prove the
medical examination of PW1. According to her, at 3.30p.m. on
06.12.2022, the Sub Inspector of Police, Kollam East brought PW1
for medico-legal examination, and accordingly, she had
conducted the medico-legal examination and issued Ext.P4
medical certificate which would bear her signature and official
seal. According to her, during examination, PW1 disclosed that
the accused used to catch on her body, while she was studying in
the 3rd standard and when she had been studying in the 4th
class, he put his penis into her vagina and thereafter, he had
taken her on threat to his house and caught hold on her breast
and vagina and continued the same till 7th standard. She also
deposed that PW1 understood ‘bad touch’ from a class attended
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by her and she had disclosed the same to her aunt.
16. Ext.P5 is the ownership certificate tendered in
evidence through PW6, Revenue Officer, Kollam Corporation and
according to him, the house was owned by the accused and Usha
Rajan. PW7 examined in this case is the Headmistress of
Vimalahridaya Girls HIgher Secondary School. On her
instruction, PW2, Counselor in the school had given counselling
to PW1.
17. In order to prove the potency of the accused to find
out whether he is capable of performing sexual acts, Ext.P6
certificate in the above line was tendered in evidence through
PW9, Dr. Swathy, Casualty Medical Officer, District Hospital,
Kollam. The said aspect is not in dispute.
18. Supporting the evidence of PW1, her friend, PW10 also
testified regarding a part of the occurrence. According to her,
when she was studying in the 9th standard and while she was
walking along with PW1, the accused approached them near the
railway bridge at Chemmam Mukku (Kollam) and compelled PW1
to enter into his bike. She also deposed about the repeated
compulsion and her interference to sent him back. The bike so
used by the accused was taken into custody as per Ext.P7. Ext.P7
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is tendered in evidence through PW11, who is a signatory to it.
19. Regarding the recording of Ext P1 statement given by
PW1, PW12, the Grade ASI attached to Kollam East Police Station
had given evidence. During her examination, one omission in
Ext.P1 to the effect that PW1 become partially unconscious was
elicited. Similarly, the evidence given by PW1 that she
understood that touching on the private parts was wrong from
the class when ‘good touch’ and ‘bad touch’ were taught, was
also denied. In fact the same were not material omissions in the
form of contradictions to disbelieve the version of PW1. PW14
and PW15 investigated this crime and they had given evidence
supporting the investigation. It was through PW16, the then
Village Officer of Kollam East village, Ext.P13, scene plan,
showing the place of occurrence as plot No.6 in Ext.P13 was
tendered in evidence.
20. Here, as already pointed out, the main contention
raised by the learned counsel for the appellant is that the
penetrative sexual assault spoken by PW1 was occurred while
she was studying in the 4th standard, and according to PW1
sexual assault continued till she reached the 7th standard.
However, when she was studying in the 7th standard, she
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attended a class regarding ‘good touch’ and ‘bad touch’ and
thereafter, only on 06.12.2022 the present case was registered.
According to the learned counsel, the delay of nearly three years
in disclosing the initial incident and the last incident that
occurred, while she was in the 4th standard remains completely
unexplained. Therefore, the evidence of PW1 regarding the
sexual overt acts done by the accused could not be believed. In
this regard, going through the evidence of PW1, it is stated that
the accused started to catch on her private parts, when she was
studying in the 3rd standard and while she was studying in the
4th standard, he had brought her to his room and subjected her
to penetrative sexual assault. According to her, thereafter, he
continued the same until she reached the 7th standard on
threatening that if she would disclose the same to anybody, she
would be killed. The reason for non-disclosure of the occurrence
spoken by PW1 was the threat offered by the accused and also
her lack of understanding regarding the seriousness of the overt
acts done by the accused. This seems to be a reasonable
explanation in the facts of this particular case. Therefore, the
contention raised by the learned counsel for the appellant that
the delay in disclosing the occurrence, failed to be explained and
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prosecution case spoken by PW1 is not liable to be accepted
cannot be counternanced in view of the particular nature of this
case, where the evidence of PW1 as regards the commission of
repeated penetration and assault found to be reliable and of
sterling quality.
21. Here DW1 was examined to prove the relation
between the families of DW1 and the accused but, his evidence
found to be of no credit by the learned Special Judge and on
reading the evidence of DW1, the said finding is only to be
justified.
22. It is well settled law that, in cases of sexual
molestation, if the evidence of the victim is found to be wholly
reliable and of sterling quality, the same can be the sole basis of
conviction even without corroboration. It is true that, PW5 who
examined the victim and issued Ext.P4 certificate did not notice
any injury on the body of PW1 and the reason is obvious. That is
to say, the last occurrence was at the age of 13 years and the
examination was when she completed 16 years of age. Therefore,
the medical evidence in this case is of least significance.
23. In view of the above, the finding entered by the
learned Special Judge holding that the appellant/accused had
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committed offences punishable under Sections 376(1), 506(i),
354(D)1)(i) of IPC and Sections 4(2) r/w 3(a), 10 r/w 9(l) and 6 r/w
5(m) of the POCSO Act is only to be justified. Therefore, the
conviction does not require any interference.
24. As far as the sentence is concerned, since the sentence
imposed by the Special Court for the offence under Sections 4(2)
r/w 3(a), 10 r/w 9(l) and 6 r/w 5(m) is the statutory minimum and
no reduction in sentence is practically possible, the sentence is
also liable to be confirmed.
In the result, 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.
Registry is directed to forward a copy of this judgment to
the Special Court, for information and further steps.
Sd/-
A. BADHARUDEEN
JUDGE
Sbna/