EBIN vs STATE OF KERALA

2026:KER:38285
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
MONDAY, THE 25 DAY OF MAY 2026 / 4TH JYAISHTA, 1948
CRL.A NO. 1166 OF 2017
CRIME NO.357/2016 OF PUTHENVELIKKARA POLICE STATION, ERNAKULAM
AGAINST THE JUDGMENT DATED 14.11.2017 IN SC NO.756 OF 2016 OF ADDITIONAL
DISTRICT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN), ERNAKULAM
APPELLANT/ACCUSED:
EBIN A.V.,
AGED 21 YEARS,
S/O.VARGHESE,
AMALATH HOUSE,
KAVILKADAVU,
KODUNGALLOOR,
THRISSUR DISTRICT.
BY ADV SRI.P.V.JEEVESH
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR (CBI),
HIGH COURT OF KERALA,
ERNAKULAM-682031.
BY ADV. SMT.AMBIKA DEVI S, SPECIAL GOVERNMENT PLEADER
(ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF WOMEN AND
CHILDREN)
BY SRI. VIPIN NARAYAN.A, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2026,
THE COURT ON 25.05.2026 DELIVERED THE FOLLOWING:

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'C.R.'
JUDGMENT
th
Dated this the 25 day of May, 2026
The sole accused in S.C. No.756/2016 on the files of the
Special Court (for the trial of cases relating to atrocities and
sexual violence against women and children), Ernakulam, has
filed this appeal, under Section 374(2) of the Criminal
Procedure Code [hereinafter referred as ‘Cr.P.C’ for short]
challenging the conviction and sentence imposed by the
Special Judge, against him as per the judgment dated
14.11.2017. The State of Kerala, represented by the Public
Prosecutor is arrayed as the respondent herein.
2. Heard the learned counsel for the appellant and the
learned Public Prosecutor, and also gone through the argument
notes filed by the learned counsel for the appellant in writing.
Perused the verdict under challenge and the records of the
Special Court.
3. Parties in this appeal shall be referred as ‘accused’
and ‘prosecution’, hereafter.

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4. The prosecution alleges commission of offences
punishable under Section 376(2)(n) of the Indian Penal Code
[hereinafter referred as ‘IPC’ for short] and Section 3(a) read
with 5(l) and Section 6, Section 7 read with 8 of the Protection
of Children from Sexual Offences Act [hereinafter referred as
‘POCSO Act’ for short], by the accused. The allegation of the
prosecution is that, the accused had committed sexual assault
against the victim, who was aged only 17 years, on a day in
the month of April, 2016 and also in the month of May, 2016.
The learned Special Judge after framing charge for the above
said offences, recorded evidence and completed trial. During
trial, PWs 1 to 15 were examined and Exts.P1 to P11 were
marked on the side of the prosecution. Even though, the
accused was given opportunity to adduce defence evidence
after questioning him under Section 313(1)(b) of the Cr.P.C.,
he did not opt to adduce any defence evidence.
5. On appreciation of evidence, the Special Court found
that the accused was guilty for the offences punishable under
Section 7 read with 8 of the POCSO Act. Accordingly, the
accused was convicted for the said offences and sentenced to

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undergo vigorous imprisonment for 3 (three) years and to pay
a fine of Rs.10,000/- (Rupees Ten Thousand only) for the said
offences and in default of payment of fine amount, rigorous
imprisonment for another one month was also ordered.
6. The points urged by the learned counsel appearing
for the appellant are as under:-
“ 1. Failure to Prove the Substratum of the Prosecution Case.
The prosecution alleged an offence involving sexual
intercourse, but the victim herself made no such allegation in
her testimony. This omission demolishes the foundational basis
("substratum") of the case. The prosecution must prove the
essential ingredients of the offence beyond reasonable doubt;
mere speculation cannot sustain a conviction. Without the
victim's corroboration of the core allegation. the entire case
collapses.
2. Victim's Testimony Riddled with Contradictions and
Improvements.
The victim's examination-in-chief and cross-examination reveal
material contradictions, embellishments, and improvements
not present in her initial statements. A witness's testimony
must be cogent and consistent; contradictions going to the
root of the matter warrant acquittal.
3. Prosecution's Failure to Prove the Victim's Minority .
The prosecution adduced no cogent evidence to establish that
the victim was below 18 years of age, a prerequisite under the
POCSO Act. The ossification test or medical evidence, if any,
lacks reliability, and the victim's self-serving statement alone

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cannot suffice. Absent this, the applicability of POCSO
provisions fails, warranting acquittal.
4. Constitutional Invalidity of POCSO Age Threshold vis-à-vis
Article 14.
A girl aged 17 years possesses the mental maturity and
rational capacity to consent, akin to an adult. Criminalizing
consensual elopement or relations with a peer violates Article
14 (equality) and Article 21 (right to life and liberty) of the
Constitution. The POCSO Act's rigid age limit of 18 years,
without considering maturity, is arbitrary and discriminatory
against young adults, rendering it ultra vires. The provision
merits being struck down or read down.
5. Invalidity of the Medical Certifica tee.
The medical certificate issued by the doctor was not in the
prescribed form under medico-legal protocols. This procedural
lapse deprives it of evidentiary value.
6. Potency Test Conducted Without Consent - Violation of
Fundamental Rights.
The potency test on the Appellant was performed sans
informed consent, infringing Article 21 (right to privacy and
bodily integrity). This vitiates the test results, rendering them
inadmissible.
7. Ineffective Assistance by Trial Counsel The defence
lawyer's inadequate cross-examination.
Failing to confront the victim with key contradictions or
challenge prosecution evidence-amounted to ineffective
assistance, prejudicing the Appellant's fair trial rights under
Article 21.

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8. Sole Reliance on Uncorroborated Testimony - Violation
of Criminal Jurisprudence.
The prosecution case hinges exclusively on the victim's
uncorroborated testimony, ignoring the safeguard that
convictions in sexual offences require corroboration No
independent witnesses, recovery evidence, or forensic
corroboration exists, mandating acquittal.”
7. The learned Public Prosecutor submitted that with
regard to the offence found to be committed by the accused,
the evidence of PW1, categorically established the ingredients
of the offence under Sections 7 read with 8 of the POCSO Act.
The learned Public Prosecutor also submitted that the
conviction and sentence imposed on the accused are liable to
be sustained and that none of the contentions raised by the
accused would sustain so as to interfere with the verdict
impugned.
8. In view of the rival submissions, the points arise for
consideration are:
1. Whether the Special Court is justified in
finding that the accused committed the offence
under Section 7 read with 8 of the POCSO Act?
2. Whether the verdict of the Special Court
would require interference?

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3. Order to be passed?
9. Point Nos.1 to 3:- In this case, in order to find
commission of the offence under Section 7 read with 8 of the
POCSO Act, the learned Special Judge mainly relied on the
direct evidence of the victim, who was got examined as PW1.
On perusal of the evidence of PW1, it is discernible that she
deposed about the occurrence disclosing some overt acts and
not disclosing some overt acts as alleged by the prosecution.
According to her, her father was working in Andaman Nicobar
Island and her mother was working in Saudi Arabia and she
had two elder sisters and all of them studied by staying at a
hostel. She deposed further that, when she was called by the
Chairperson of the Child Welfare Committee, she disclosed the
details of the case before the Child Welfare Committee and
they recorded the same. She admitted that Ext.P1 statement
was so given by her and she identified the accused at the dock,
who was introduced to her by her friend, Anupama. According
to her, she used to call the accused through mobile phone. She
further deposed that during school vacation, on a day, at about
11.00 p.m., the accused reached her house and he entered

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inside the house through the door of the kitchen. Then she
took the accused to her room and then he kissed her, hugged
her and touched on her private parts with her consent.
According to her, the accused arrived there on a two-wheeler
and parked it on the road. Subsequent to thereafter, also on

two occasions, the accused reached her house and committed
the same overt acts. But she was declared hostile when she
deposed that there was no sexual intercourse in between her
and the accused. Even though PW1 turned hostile to the
prosecution, as regards to sexual intercourse in between PW1
and the accused, as far as the evidence given by her disclosing
sexual overtures excluding sexual intercourse, nothing asked
during her cross examination and evidence of PW1 in this
regard remains unchallenged even without a suggestion that
the said versions are false.
10. PW3 examined in this case is the father of the
victim. He also supported the occurrence as telephoned by
PW2. PW4, the sister of PW1 supported the occurrence
deposed by PW1 in tune with the prosecution allegations. Apart
from that, PW2, a member of Rural Juvenile Police admitted

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that she had recorded the statement of PW1 on 01.07.2016 as
directed by CWC and a report also was forwarded as seen in
Ext.P3. Ext.P5 is the ownership certificate of the house where
the occurrence took place, owned by the father of the victim
proved through PW6. Ext.P6 is the site plan relating the place
of occurrence proved through PW7. Ext.P7, the scene mahazar
is proved through the presence of PW8, who is none other than
the brother of PW3.
11. In this case, the first point argued by the learned
counsel for the appellant/accused is that the substratum i.e.,
fundamental basic ingredients failed to be proved beyond
reasonable doubt by the prosecution and mere speculations
would not be sufficient to sustain a conviction. The second
point argued is that the evidence of PW1 would show
contradictions and improvements, where PW1 turned hostile to
the prosecution as regards to sexual intercourse while
deposing before the court regarding the sexual overtures in
terms of the prosecution case and no attempt made by the
counsel for the accused, to cross examine PW1 to get
contradictions or omissions in her statement as regards to the

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facts disclosed which would show the elements to prove the
offence under Section 7 of the POCSO Act. It is well settled
that merely because a witness is declared hostile, or the
witness does not support the prosecution case exactly in terms
of prosecution version, the evidence tendered by such witness
should not be eschewed in toto or, not at all reliable,
particularly when such evidence failed to be challenged by the
defence during cross-examination of the witness. Therefore,
the challenge on the part of the counsel for the accused that,
under the circumstances, the substratum of the prosecution
case stands demolished and that the testimony of PW1 is
vitiated by contradictions and improvements could not be
found.
12. The third point raised in the argument note is that
no cogent evidence produced to prove the age of the victim
below 18 years. In this case, Ext.P4, the birth certificate
issued by the Secretary of Puthenvelikkara Panchayat had been
tendered in evidence through the Secretary, who got examined
as PW5 showing the date of birth of the victim as 24.12.1998.
In fact, the birth certificate issued by the local authorities is a

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reliable document to prove the age of the victim. Therefore,
this contention would definitely fail.
13. The fourth point raised in the argument note as
indicated above cannot be considered by this Court as a person
below 18 years is stated as a minor for the purpose of the
POCSO Act. Regarding points raised as 5 and 6, in this case
Ext.P8 is the certificate issued by PW9, while he was working
as CMO, Taluk Hospital, North Paravur to prove the potency of
the accused. In fact, a challenge raised regarding the potency
test on the ground that it was conducted without the consent
of the accused in a criminal case is not tenable with the aid of
Article 21 of the Constitution of India, since such a test is
legally permissible, without the consent of the accused and is
not prohibited under Article 21 of the Constitution. Point No. 7

argued by the learned counsel for the appellant is ineffective
assistance of counsel during the trial and failure to conduct
effective cross-examination, resulted in conviction. In fact, the
accused has no case that he was not defended by a lawyer of
competence, since this case was defended by a lawyer of his
own choice. Therefore, this challenge also cannot be sustained.

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14. The last ground, viz., ground No. 8 in the
argument note is that the conviction is based on the sole
uncorroborated testimony of PW1, ignoring the safeguard of
conviction in sexual offences which would require
corroboration through independent witnesses, in the matter
of evidence of recovery, forensic corroboration etc. In fact,
the evidence of PW1 narrated above is found to be reliable
to the extent which disclosed the ingredients for the offence
under Section 7 of the POCSO Act. Section 7 of the POCSO
Act provides that whoever, with sexual intent touches the
vagina, penis, anus or breast of the child 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. So touching the vagina, penis, anus
or breast of the child or makes the child touch, itself would
attract the offence under Section 7 of the POCSO Act. In the
instant case, the evidence of PW1 is wholly reliable to be

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acted upon. Therefore, the contention raised by the learned
counsel for the accused that the sole testimony of PW1 alone
would not suffice to enter in conviction is found to be
untenable.
15. Apart from the above, her sister and parents and
also PW2 corroborated the prosecution case. Therefore, none
of the contentions raised by the appellant to unsettle the
verdict found to be sustained. Consequently, the conviction
is liable to be confirmed.
16. Coming to the sentence, three years is the
maximum sentence imposed upon the accused for the
offence under Section 7 read with 8 of the POCSO Act and
the same is the statutory minimum sentence provided for
the offence under Section 7 read with Section 8 of the
POCSO Act. Therefore, no reduction in sentence is legally
permissible.
17. Therefore, reduction in sentence also is not
possible. Accordingly, the verdict impugned does not require
any interference and in such view of the matter, this appeal

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must fail.
In the result, this criminal appeal stands dismissed.
Registry is directed to forward a copy of this judgment to the
Special Court concerned forthwith, for information and
compliance.
Sd/-
A. BADHARUDEEN
JUDGE
DCS

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APPENDIX OF CRL.A NO. 1166 OF 2017
PETITIONER ANNEXURES
Annexure A THE CERTIFIED COPY OF THE ORDER IN S.C.NO.
756/2016 OF ADDITIONAL DISTRICT AND SESSION'S
JUDGE, ERNAKULAM, DATED 14.11.2017