Inserting ‘vibrating machine’ into child is penetrative sexual assault, rules Kerala High Court

The appeal was filed by the first accused challenging his conviction by a special court under the IPC and the POCSO Act by a judgment dated September 30, 2024.

‘Sexual assault at cosmetology centre’

The prosecution alleged that on July 20, 2019, the accused, who was the manager/make-up man of a treatment centre, took the minor girl into a room at the centre and sexually assaulted her. It was alleged that he used a vibrating machine in her vagina without her consent and threatened her that if she disclosed the incident, she would be portrayed as a “bad girl” in society.

Justice A Badharudeen observed that the 10-year sentence imposed by the special court was the minimum punishment prescribed under the POCSO Act.

One of the witnesses stated that the survivor, a 17-year-old, was brought there by the second accused, who ran the treatment centre, stating that she would be taught cosmetology, and was appointed as staff. The second accused was also booked for allegedly failing to inform the authorities after the minor disclosed the matter to them.

Following a trial, the special court convicted the first accused for offences including rape, outraging the modesty of a woman and criminal intimidation under the IPC, and penetrative sexual assault under the POCSO Act. The accused challenged the conviction before the Kerala High Court.

‘Delay in filing FIR’

Advocates M G Sreejith, Vidyajith M, Bincy Jose, Rojin Devassy and Gopia K V, appearing for the first accused, argued that there was an unexplained delay of about two years in filing the FIR. The alleged incident took place in 2019, but the complaint was filed in 2021. It was argued that the survivor was 17 years and 5 months old at that time, and would have been a major within six months.

The counsel contended that the special court wrongly relied on the survivor’s testimony, which had inconsistencies, and sought reduction of sentence, claiming that there was no reliable evidence.

The state argued that the delay in FIR was because survivors after sexual offences may delay disclosure due to social pressure, fear and trauma, and such delay cannot by itself discredit the case. It was submitted that the survivor’s testimony was sufficient to prove the offence and that the conviction did not warrant interference.

Sentence, conviction upheld

The high court held that the special court was justified in convicting the accused for penetrative sexual assault under the POCSO Act and rape under IPC. It also found evidence to establish offences under IPC for threatening someone with injury to their person, reputation, assaulting or using criminal force on a woman, or abetting such an act, with the specific intent to disrobe her or compel her to be naked.

The court observed that the sentence imposed by the special court was the minimum punishment of 10 years’ rigorous imprisonment prescribed under the POCSO Act. Since the law does not permit a reduction below the minimum sentence, the accused’s plea for a reduction could not be accepted. Accordingly, the court dismissed the appeal, and upheld the special court’s conviction and sentence.