Justice A. Badharudeen referred to Section 3 of the POCSO Act [Protection of Children from Sexual Offences Act], which defines penetrative sexual assault and Section 375 IPC, and opined:

“Here M.O2 vibrator fixed with M.O1 penis like structure was placed on the vagina of the victim in vibrating mode…placing a vibrating machine on the orifice of the vagina viz., labia majora, or vulva, by itself would be sufficient to find insertion of M.O1 on the vagina and the same is sufficient to hold that a person committed penetrative sexual assault as defined under Section 3(b) punishable under Section 4 of the POCSO Act. Similar is the position with regard to the offence of rape defined under Section 375(b) of the IPC.”

The Court was considering an appeal preferred by a convict, who was found guilty of raping a 17-year-old girl. The trial court had found that he committed offences under Sections 376(1), 375(b), 354B and 506(i) of the IPC as well as under Section 4(1) r/w 3(b) of POCSO Act. Challenging the conviction and sentence, he approached the High Court.

The prosecution allegation was that the appellant misused his position as Manager of the 2^nd accused, who was running a Cosmetology centre and that he laid the victim forcefully on the treatment bed, removed her underwear and placed on her vagina a penis-like instrument that was inserted on a vibrating mode. He also threatened the victim so as to prevent her from revealing the same to anyone.

Though she disclosed the same to the 2^nd accused, he told her it was joke. The 2^nd accused was arrayed because he failed to inform about the incident as he is statutorily required to. However, the trial court acquitted him.

The appellant raised many contentions, including delay of 2 years in lodging the FIR, lack of medical or scientific evidence, the victim would have become a major soon after the incident, etc. It was also pointed out that the victim did not state to the police that the vibrator was pressed for some time.

The High Court found that the appellant's contention that the victim would have become a major soon was of no significance as she fell under the definition of 'child', being less than 18 years and, that the same was proved through her SSLC book and birth certificate.

Rejecting the contention of delay, the Court remarked that the same was explained by the victim, who being faced with threats, could only disclose it after the arrest of the 2^nd accused in another case.

The Court remarked that the victim was subjected to voir dire examination by the trial court which found her capable to give evidence. It also found that the victim's statement remained unshaken despite minor contradictions and that she had explained why she did not disclose about the pressing of vibrating for some time or the feeling of discomfort.

After re-appreciating all the evidence in the case, the Court was of the view that the judgment of the trial court need not be interfered with. Since the statutory minimum sentence was awarded to the appellant, the Court remarked that reduction in the sentence is not permitted under law.

Thus, it dismissed the appeal.

Case No: Crl.Appeal No.2302/2024

Case Title: Joshy K.J. v. State of Kerala

Citation: 2026 LiveLaw (Ker) 416

Counsel for the appellant: Gajendra Singh Rajpurohit – State Brief, M.G. Sreejith, Vidyajith M., Bincy Jose, Rojin Devassy, Gopika K.V.

Counsel for the respondent: Sajeev P.K. - Public Prosecutor

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