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KERALA HIGH COURT
A. Badharudeen, J.
Ebin A.V. – Appellant
versus
State of Kerala – Respondent
CRL.A No. 1166 of 2017
Decided on 25.5.2026
Counsel for the Parties:
For the Appellant:Sri. P.V. Jeevesh, Advocate
For the Respondent: Smt. Ambika Devi S, Special Government Pleader (Atrocities Against Women and Children and Welfare of Women and Children), Sri. Vipin Narayan. A, Senior Public Prosecutor
IMPORTANT POINTS
(1) POCSO – Birth certificate issued by local authorities is a reliable document to prove age of victim.
(2) Evidence of hostile witness cannot be rejected in its entirety.
Headnote:
Protection of Children from Sexual Offences Act, 2012 – Sections 6, 7 and 8 – Indian Penal Code, 1860 – Section 376(2)(n) – Criminal Procedure Code, 1973 – Section 374(2) – Penetrative sexual assault on minor girl – Conviction and sentence – Evidence of victim is wholly reliable to be acted upon – Accused has no case that he was not defended by a Lawyer of competence – Birth certificate issued by local authorities is a reliable document to prove age of victim – Merely because a witness is declared hostile, or the witness does not support the prosecution case exactly in terms of prosecution version, 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 defence during cross-examination of witness – None of contentions raised by appellant to unsettle the verdict found to be sustained – Conviction is liable to be confirmed – Verdict impugned does not require any interference. (Paras 11, 12, 13, 14, 15, 16 and 17)
Result: Criminal Appeal dismissed.
JUDGMENT
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.
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 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 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 y
