Potency Test Of Accused Conducted Without Consent In POCSO Case Does Not Violate Article 21: Kerala High Court

The Court was hearing a criminal appeal filed by the sole accused in Sessions Case No.756 of 2016, challenging the judgment of the Special Court for trial of cases relating to atrocities and sexual violence against women and children, Ernakulam, convicting him under Sections 7 and 8 of the POCSO Act and sentencing him to rigorous imprisonment for three years along with a fine.

A Bench of Justice A. Badharudeen observed: “… 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.”

Advocate P.V. Jeevesh appeared for the appellant. Ambika Devi S., Special Government Pleader (Atrocities Against Women and Children and Welfare of Women and Children), along with Vipin Narayan A., Senior Public Prosecutor, appeared for the State.

Background

The prosecution alleged commission of offences punishable under Section 376(2)(n) IPC and Sections 3(a) read with 5(l) and Section 6, as well as Sections 7 and 8 of the POCSO Act against the accused. According to the prosecution, the accused committed sexual assault upon the victim, who was below 18 years of age, during April and May 2016.

The Special Court framed charges and conducted a trial during which the prosecution examined fifteen witnesses and marked documentary evidence, including the victim’s statement, scene mahazar, birth certificate and potency certificate.

Upon appreciation of evidence, the Special Court acquitted the accused of the graver offences but convicted him under Sections 7 and 8 of the POCSO Act for acts amounting to sexual assault involving physical contact without penetration. The accused was sentenced to rigorous imprisonment for three years and a fine of ₹10,000.

Aggrieved by the conviction, the accused preferred the present appeal, contending, inter alia, that the prosecution failed to establish the substratum of the case, that the victim’s testimony contained contradictions and improvements, that the victim's minority had not been proved and that the potency test conducted without his consent violated Article 21 of the Constitution.

The appellant further contended that the medical certificate had not been issued in the prescribed form, that the trial counsel had rendered ineffective assistance, and that the conviction could not be sustained solely on the uncorroborated testimony of the victim.

Court’s Observation

The High Court examined the evidence of the victim, who was examined as PW1, and noted that while she did not support the prosecution's allegation regarding sexual intercourse, she clearly deposed regarding sexual overtures committed by the accused.

The Court noted that the victim specifically stated that the accused entered her room, kissed her, hugged her and touched her private parts with her consent on multiple occasions.

The Bench observed that even though the victim was declared hostile insofar as the allegation of sexual intercourse was concerned, her testimony regarding acts constituting sexual assault under Section 7 of the POCSO Act remained unchallenged during cross-examination.

The Court observed: “Even though PW1 turned hostile to the prosecution, as regards to sexual intercourse in between PW1 and the accused, as far as the evidence given by her disclosing sexual overtures excluding sexual intercourse, nothing asked during her cross examination and evidence of PW1 in this regard remains unchallenged.”

Rejecting the argument that the substratum of the prosecution case had failed, the Court held that the testimony of the victim could not be discarded merely because she had not supported the prosecution in its entirety.

The Court observed: “Merely because a witness is declared hostile, or the witness does not support the prosecution case exactly in terms of prosecution version, the evidence tendered by such witness should not be eschewed in toto.”

The High Court also rejected the challenge relating to proof of minority and held that Ext.P4 birth certificate issued by the local Panchayat constituted reliable evidence establishing that the victim was below 18 years of age at the relevant time.

The Bench declined to entertain the constitutional challenge raised against the age threshold prescribed under the POCSO Act and reiterated that a person below 18 years is statutorily treated as a minor for the enactment.

While dealing with the challenge to the potency certificate, the Court noted that Ext.P8 had been issued by the Chief Medical Officer of Taluk Hospital, North Paravur, and rejected the argument that the potency test became invalid merely because it was conducted without the consent of the accused.

The Court categorically held that such tests are legally permissible in criminal cases and are not prohibited under Article 21 of the Constitution.

The Bench also rejected the contention regarding ineffective legal assistance and observed that the accused had been defended by a lawyer of his own choice and had no case that he was not represented by competent counsel.

The Court thereafter examined the argument that the conviction could not be sustained solely on the testimony of the victim in the absence of independent corroboration.

Rejecting the submission, the Court held that the testimony of the victim was wholly reliable to the extent it disclosed ingredients of the offence under Section 7 of the POCSO Act.

The Court observed: “Section 7 of the POCSO Act provides that whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

The Court further held that touching the private parts of the child with sexual intent itself would attract the offence under Section 7 of the POCSO Act.

The Bench also noted that the testimony of the victim was corroborated by her parents, sister and the Juvenile Police Officer examined in the case.

On the question of sentence, the Court observed that the Special Court had imposed the statutory minimum sentence prescribed under Sections 7 and 8 of the POCSO Act and therefore, no reduction was legally permissible.

Conclusion

The Kerala High Court dismissed the criminal appeal and upheld the conviction and sentence imposed upon the accused under Sections 7 and 8 of the POCSO Act.

The Court held that the evidence on record sufficiently established acts constituting sexual assault within the meaning of Section 7 of the POCSO Act and that none of the challenges raised by the appellant warranted interference with the judgment of the Special Court.

Cause Title: Ebin A.V. v. State of Kerala (Neutral Citation: 2026:KER:38285)

Click here to read/download Judgment