"Hymen Absent" Equivalent To "Hymen Ruptured" To Establish Penetrative Sexual Assault: Kerala High Court Upholds POCSO Conviction

Rejecting the accused's defence that a consensual inter-faith relationship existed between him, a Christian, and the victim, a 16 year old Hindu juvenile, the Court held that consent vanishes entirely upon proof of overt acts when the victim is a minor, and confirmed the conviction and sentence under the POCSO Act.

Justice A. Badharudeen observed, “…rupturing of hymen or hymen absent would lead to penetration and this aspect has no significance when rape and penetrative sexual assault are the offences alleged. It is the well settled law that even slight penetration would suffice the requirement of penetrative sexual assault and rape. To put it otherwise, penetration could be found even without rupture of hymen and penetration to labia majora or on the orifice of the vagina or vulva would satisfy the requirement of penetration. When hymen absent is the observation, penetrative sexual intercourse to be found…”.

The accused, Ashin Chacko, was convicted by the Special Court under the POCSO Act, Thodupuzha, for offences under Sections 450, 506(i) and 376 of the IPC and under Sections 3, 7 and 11 of the POCSO Act.

The prosecution case was that on 27 April 2019 at 10.15 p.m., the accused trespassed into the residence of the victim, a girl aged 16 years and 2 months, forcibly dragged her to her bedroom, locked the door and committed rape and penetrative sexual assault despite her resistance. The victim's mother, awakened by her cries, knocked on the locked door and witnessed the accused inside the room. The FIR was registered on 30 April 2019, three days after the incident.

Before the High Court, the defence argued that a consensual relationship existed between the accused and the victim and that the complaint was motivated by parental opposition to their inter-faith relationship, the accused being Christian and the victim Hindu.

The defence also relied on the three-day delay in lodging the FIR and the medical report recording hymen absent rather than hymen ruptured.

The Court rejected all three contentions. On the delay, the Court held that in cases of sexual assault a victim and her family naturally hesitate to disclose the offence on account of the detrimental effect on the victim's reputation, and a thinking time to set the law in motion cannot be treated as a material irregularity.

“The rational is disclosure of sexual assault or rape would necessarily have a detrimental and deleterious effect on the life of the victim, since her integrity and reputation would be damaged on such disclosure so a thinking time to get the law in motion against the offender could not be taken as significant and the same to be ignored as trivial in nature to be read as inconsequential. Be it so, the evidence of PW2 to be relied on to justify the delay and in view of the same, there is no material delay in lodging the FIR and the contention in this regard is liable to be rejected”, the Bench noted.

“It is discernible from the evidence that there had been a relationship between the victim and the accused, and the occurrence is the outcome of the same. According to PW1, the intercourse and sexual assault were opposed by her. In fact, the victim is a juvenile aged 16 years and in such a case consensual relationship vanishes, when overt acts are proved, to find commission of the offences by the appellant/accused”, the Bench further noted.

Accordingly, the sentence of ten years rigorous imprisonment imposed by the Special Court under Section 3 read with Section 4 of the POCSO Act, being the minimum prescribed, was confirmed as not open to reduction.

Cause Title: Ashin Chacko v. State of Kerala (Neutral Citation: 2026:KER:45786)

Appellant: K.S. Arun Das, Ambily Joshy, Anamika, Smt. Manjusha M.S. and Salini K, Advocates.

Respondent: Vipin Narayan A, Senior Public Prosecutor.

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