Potency Test Conducted On POCSO Accused Without Consent Does Not Violate Right To Privacy Or Bodily Integrity : Kerala High Court
The Kerala High Court recently observed that potency test can be conducted on a man, who is accused in a criminal case, without his consent and it is not violative of Article 21 of the Constitution of India.Justice A. Badharudeen rejected the ground raised that the potency test conducted without informed consent violated his right to privacy and bodily integrity guaranteed under Article 21....
The Kerala High Court recently observed that potency test can be conducted on a man, who is accused in a criminal case, without his consent and it is not violative of Article 21 of the Constitution of India.
Justice A. Badharudeen rejected the ground raised that the potency test conducted without informed consent violated his right to privacy and bodily integrity guaranteed under Article 21.
The Court held:
“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.”
The Court was considering an appeal filed by a person convicted of the offences under Section 7 read with 8 of the Protection of Children from Sexual Offences Act (POCSO Act), 2012. He challenged the conviction as well as the sentence of 3 years' imprisonment and fine of Rs. 10,000 imposed on him.
The prosecution allegation was that the accused committed sexual assault on the victim, who was only 17 years old. He was accused of the offences under Section 376(2)(n) of the Indian Penal Code and Section 3(a) read with 5(l) and Section 6, Section 7 read with 8 of POCSO Act.
The appellant/accused argued that since there was no corroboration by the victim, the prosecution case was not proved beyond reasonable doubt. He pointed to the contradictions and improvements made in the victim's statement. He further raised a ground that the prosecution failed to prove that the victim was a minor.
It was also challenged the age limit of 18 years imposed by the POSCO Act as violative of Articles 14 and 21 on the ground that a girl aged 17 years had the mental maturity and capacity to consent to sexual acts. He also pointed to ineffective assistance of the defence counsel during trial.
Another ground raised was that the potency test was conducted on him without informed consent and the same infringed his right to privacy and bodily integrity.
After hearing the parties, the Court examined the statement of the victim and her deposition disclosed some overt acts but not all alleged by the prosecution. She had identified the accused at the dock. She further deposed that he was introduced to her by a friend and that she used to call him on her mobile phone.
Her deposition revealed that the accused kissed her and touched her private parts with consent. However, she deposed that there was sexual intercourse between them. She was then declared as hostile to the prosecution.
The Court observed that her deposition with respect to sexual acts excluding sexual intercourse was unchallenged since she was not contradicted during cross examination. It was opined that the evidence tendered by the victim cannot be eschewed in toto merely because she was declared hostile.
The Court further noted that the other prosecution witnesses, including the Rural Juvenile Police member who recorded the victim's statement, the father and sister of the victim deposed in support of the prosecution version.
It rejected the contention that the victim was not proved to be a minor after noting that the Panchayat Secretary, who issued the victim's birth certificate, was examined by the prosecution and that birth certificate is a reliable document to prove age of the victim.
The ground regarding violation of privacy during potency test was also rejected by the Court.
With respect to the argument that the defence counsel before trial court did not give effective assistance, the Court was of the view that this contention also does not stand since the accused was defended by a lawyer of his choice.
Since the victim's and her family's version was in support of the offences under Sections 7 and 8, the Court felt that the conviction does not warrant any interference. Moreover, since the minimum sentence imposed for the said offences is 3 years' imprisonment, the Court opined that sentence cannot be reduced. Thus, it dismissed the appeal.
Case No: Crl.A. No. 1166 of 2017
Case Title: Ebin A.V. v. State of Kerala
Citation: 2026 LiveLaw (Ker) 314
Counsel for the appellant: P.V. Jeevesh
Counsel for the respondent: Vipin Narayan A. - Senior Public Prosecutor