Vishnu @ Unni vs State Of Kerala Represented By The ...
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Kerala High Court

Vishnu @ Unni vs State Of Kerala Represented By The ... on 26 March, 2026

                                                         2026:KER:26885

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

             THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

      THURSDAY, THE 26TH DAY OF MARCH 2026 / 5TH CHAITHRA, 1948

                          CRL.A NO. 2268 OF 2024

       CRIME NO.1062/2022 OF KADAKKAL POLICE STATION, KOLLAM

  AGAINST THE JUDGMENT DATED 29.07.2024 IN S.C. NO.1634 OF 2022 OF

               FAST TRACK SPECIAL COURT, KOTTARAKKARA


APPELLANT/CONVICT:

           VISHNU @ UNNI
           AGED 31 YEARS
           S/O VENU, VISHNU BHAVAN, MANIKANDANCHIRA, PULIPPARA P.O.,
           KADAKKAL VILLAGE, KOLLAM DISTRICT, PIN - 691536


           BY ADV SRI.S.DHEERENDRAKUMAR


RESPONDENT/COMPLAINANT:

           STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR
           HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031


           SR PP - VIPIN NARAYAN.A


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2026,
THE COURT ON 26.03.2026 DELIVERED THE FOLLOWING:
                                                                2026:KER:26885
Crl.A. No. 2268 of 2024
                                       2



                                                                 "C.R"
                               JUDGMENT

Dated this the 26th day of March, 2026

The sole accused in S.C. No.1634/2022 on the files

of the Fast Track Special Court, Kottarakkara, has filed this

appeal, under Section 415(2) of the Bharatiya Nagarik

Suraksha Sanhita, 2023, challenging the conviction and

sentence imposed by the Special Judge, against him as per

the judgment dated 29.07.2024. The State of Kerala,

represented by the Public Prosecutor is arrayed as the

respondent herein.

2. Heard the learned counsel for the appellant and

the learned Public Prosecutor, in detail. Perused the verdict

under challenge and the records of the Special Court.

3. Parties in this appeal shall be referred as

'accused' and 'prosecution', hereafter.

4. The prosecution alleges commission of offences

punishable under Sections 376, 376(3) and 506(i) of the

Indian Penal Code [hereinafter referred as 'IPC' for short] as

well as under Sections 4 read with 3(a) and 3(c), 6 read with 2026:KER:26885

5(l), 5(m) and 5(n), 8 read with 7 and 12 read with 11(iii) of

the Protection of Children from Sexual Offences Act

[hereinafter referred as 'POCSO Act' for short], by the

accused. The allegation of the prosecution is that, the

accused with intention of sexually assaulting the 9 year old

victim, who was his neighbor, done sexual acts against her

on two occasions. Firstly, when the mother of the victim was

hospitalized for her second delivery between 5.4.2021 and

18.4.2021 and while the victim was playing with friends in

her courtyard, the accused took her to his room in his house

by name Vishnu Bhavan at Alukunnam bearing house

No.11/417 of Kadakkal Village, disrobed her and showed her

obscene videos. He made the victim hold his penis with her

hands, lay on her and held the chest and body of the naked

victim. He licked on her vagina and raped her. He showed

her his white discharge and said that child would be born if

the same went inside the vagina. He threatened to kill her

mother, her brother and her sister if she would divulge the

occurrence, when the victim, who felt pain cried. Again, the

accused repeated the overt acts and thus committed the

above said offences.

2026:KER:26885

5. After framing charge for the offences punishable

under Sections 4 read with 3(a), 4 read with 3(c), 6 read with

5(l), 6 read with 5(m), 8 read with 7 and 12 read with 11(iii)

of the POCSO Act, the Special Court recorded evidence and

completed trial. During trial, PWs 1 to 17 were examined and

Exts.P1 to P16 were marked on the side of the prosecution.

One contradiction as that of PW6 got marked as Ext.D1 on

the side of the defense.

6. On appreciation of evidence, the Special Court

found that the accused was guilty for the offences

punishable under Sections 4 read with 3(a) and 3(c), 6 read

with 5(l) and 5(m), 8 read with 7 and 12 read with 11(iii) of

the POCSO Act. Accordingly, the accused was convicted for

the said offences and sentenced as under:

"(i) Rigorous imprisonment for a term of 20 years and fine of Rs.10,000/- (Ten thousand only) for offence U/S.6 r/w 5(l) of POCSO Act. In default of payment of fine, he shall undergo simple imprisonment for one year. Fine amount, if paid, shall be given as compensation to PW1, the victim U/S.357(1)(b) Cr.P.C.

(ii) Rigorous imprisonment for a term of 20 years and fine of Rs.10,000/- (Ten thousand only) for offence U/S.6 r/w 5(m) of POCSO Act. In default of 2026:KER:26885

payment of fine, he shall undergo simple imprisonment for one year. Fine amount, if paid, shall be given as compensation to PW1, the victim U/S.357(1)(b) Cr.P.C.

(iii) Simple imprisonment for a period of 3 years and fine of Rs.5,000/- (Five thousand only) for offence U/S.8 r/w 7 of POCSO Act. In default of payment of fine, he shall undergo simple imprisonment for 3 months.

(iv) Simple imprisonment for a period of 1 year and fine of Rs.5,000/- Five thousand only) for offence U/S.12 r/w 11(iii) of POCSO Act. In default of payment of fine, he shall undergo simple imprisonment for 3 months.

(v) Sentences of imprisonment shall run concurrently.

(vi) Set off allowed U/S.428 Cr.P.C. from 29.06.2022 to 27.09.2022."

7. While assailing the verdict impugned, the learned

counsel for the accused zealously argued that, the Special

Court went wrong in finding commission of offences

punishable under Sections 4 read with 3(a) and 3(c), 6 read

with 5(l) and 5(m), 8 read with 7 and 12 read with 11(iii) of

the POCSO Act, by the accused, without the support of

convincing evidence. According to him, the evidence given

by PW1 (the victim) has given much emphasis by the Special 2026:KER:26885

Court to prove the prosecution allegations. However, during

cross-examination of PW1, she candidly stated that, there

was property dispute between the family of the accused and

her family and also a person named Silvi residing nearby. It is

also submitted that, during cross-examination of PW1, she

stated that a complaint was lodged against the said Silvi and

her husband for assaulting her and the said complaint had

been still pending. But, according to the learned counsel for

the accused, no such complaint had been lodged. Therefore,

the evidence of PW1 is not reliable and PW1 is not a sterling

witness to act upon her evidence to find commission of the

offences by the accused. It is also pointed out that, CW18

cited by the prosecution, the Psychiatrist, who attended PW1

at the first instance was spared from examination and the

same also is a matter to disbelieve the prosecution case.

Thus, the learned counsel for the accused pressed for

interference in the verdict impugned. He also submitted that,

even otherwise, the offence under Section 11(iii) of the

POCSO Act would not attract in the facts of this case, as the

prosecution not properly investigated the said aspect and

not adduced sufficient evidence to prove the said offence.

2026:KER:26885

8. The learned Public Prosecutor fully supported the

prosecution case and according to him PW1 had given

candid evidence supporting the occurrence and mere

evidence given by her stating that there was property

dispute between her family and the father of the accused

and the person now residing in the property would not take

away the quality of her evidence as not reliable to disbelieve

the prosecution case. Thus, according to the learned Public

Prosecutor no interference in the verdict impugned is

required.

9. In view of the rival submissions, the points arise for

consideration are:

1. Whether the Special Court is justified in finding that the accused committed the offence under Section 4 read with 3(a) and 3(c) of the POCSO Act?

2. Whether the Special Court is justified in finding that the accused committed the offence under Section 6 read with 5(l) and 5(m) of the POCSO Act?

3. Whether the Special Court is justified in finding that the accused committed the offence under Section 8 read with 7 of the POCSO Act?

4. Whether the Special Court is justified in 2026:KER:26885

finding that the accused committed the offence under Section 12 read with 11(iii) of the POCSO Act?

5. Whether the verdict of the Special Court would require interference?

6. Order to be passed?

10. Point Nos.1 to 4:- In this case, PW1 is the victim,

who was subjected to voire dire test by the Special Court

before tendering her evidence and thereafter, on recording

the fact that the victim was capable of giving rational

answers to the questions presented to her, she was

examined. Her evidence is that, while she was studying in

the 3rd standard, her mother had gone for delivery and she

was born on 06.02.2013. She resided along with her

grandmother during the relevant period and she had some

friends nearby her house and Unnikochachan (the accused)

sent away them. According to her, the accused is a resident

of nearby house and she referred him as Kochachan

(father's brother). Her version further is that, Kochachan

used to lock her at a room in his house and when she would

attempt to open the same, he would lock the door and

place the key on the top of the almirah. He used to show 2026:KER:26885

porn videos to her in his mobile and then he would remove

his dhoti and he also would remove her skirt, knicker etc.

and place his penis on her vagina. He also used to suck on

her vagina. Further, he would move his penis by using her

hands up and down. She felt pain when the accused would

place his penis on her vagina and she would cry. Then, the

accused would threaten to kill her. When she would be

called by her grandmother, she would return after dressing

up. She also deposed that, a white substance would cling

on her dress and body and the accused told her that

children would be born if the same went inside her.

According to her, the accused done these overt acts

repeatedly at his room. She identified Ext.P1 statement

given by her to the Police and according to her the

occurrence was during the year 2021 and she had given

statement before the Police in the year 2022.

11. During cross-examination of PW1, a property

dispute pending between the father of the accused and the

family of the victim was pointed out and PW1 answered in

the affirmative. She also deposed that, Silvi, who had been

residing in the house nearby her house also assaulted her, 2026:KER:26885

for which a complaint was filed and the same had been

pending. She deposed further that, during the occurrence,

the parents of the accused were also present at the house.

These are the points argued by the learned counsel for the

accused to disbelieve the evidence of PW1. The learned

counsel for the accused also argued that, the mother of

PW1, who got examined as PW3 in this case, had

maintained an illicit relationship with another man and the

accused told PW3 that he would divulge the same to the

husband of PW3, who got examined as PW4. Thus, PW3

was enimical towards the accused and accordingly this

case has been foisted against him. Such a version was

given by the accused during his examination under Section

313(1)(b) of Code of Criminal Procedure also.

12. In this case, as deposed by PW15, as on

28.06.2022, while he was working as the Inspector of Police

in Kadakkal Police Station, CW8, the doctor informed about

the occurrence and accordingly he had recorded the

statement of PW1 in the presence of PW3 and this crime

was registered. He identified Ext.P10 as the FIR. In the 2026:KER:26885

evidence given by PW15, recovery of the dress worn by the

accused with the aid of Section 27 of the Evidence Act was

also testified. Apart from the evidence of PW1, PWs 3 and

4, the parents of PW1 also were examined and they

supported the prosecution case. Apart from PWs 3 and 4,

PW5, the maternal grandmother of PW1, PW6, the paternal

grandfather of PW1 and PW7, the paternal grandmother of

PW1 were examined and they also supported the statement

of PW1. PW8 given evidence that, the accused had

tremendous freedom in the house of PW1 and the said

aspect was not cross-examined.

13. PW9 examined was the Doctor, who examined

PW1. She stated the history as told to her by PW1. She

deposed to have issued Ext.P3 medical certificate. She

stated that on examination the hymen was intact. She

stated that the child had revealed the incident to the

psychiatrist doctor Kiran Kumar in Kottarakara hospital to

whom the child's mother had taken her on account of her

behaviour. She stated that the child had at first been

reluctant to reveal the incident to her. CW18, the doctor to 2026:KER:26885

whom the child stated to have revealed the incident had

been given up by the prosecution. Hence, PW9 seen to

have deposed supporting Exhibit P3. She deposed that the

history could be seen to be consistent with that of sexual

assault. It was stated in Exhibit P3 that only one vaginal

swab was taken as the victim was not allowing for further

examination. PW9 had explained that the child was a little

bit reluctant. She hastened to add that the victim was

normal at that point of time i.e. at the time of her

examination. She further stated that she had come to the

conclusion that sexual assault had been committed on the

basis of what had been told by the child and the mother.

14. The question now arise for consideration is

whether the evidence of PW1 is not fully reliable to act

upon the same, in view of the points argued by the learned

counsel for the accused?

15. On reading the evidence given by PW1 during

chief-examination, she had narrated all the occurrence in

detail and during cross-examination she reiterated the

overt acts done by the accused on her on various dates 2026:KER:26885

during 2021 and the same is not at all shaken. But, the

quality of her evidence was challenged on the ground that

she is not a sterling witness, as she deposed about the

property dispute between her family and the father of the

accused and the person now resides at the house of the

accused. In fact, the same is absolutely insufficient to

disbelieve the version of PW1 relied on by the Special Court

to found commission of the offences by the accused. The

statement of the accused is that, he had been implicated in

this crime due to rivalry on account of his intention to

divulge the illicit relationship of PW3 to PW4, also found to

be not appreciable in the facts of this case.

16. Coming to the evidence to see commission of the

offence under Section 11(iii) of the POCSO Act, Section

11(iii) of the POCSO Act provides as under:

"11. Sexual harassment.--A person is said to commit sexual harassment upon a child when such person with sexual intent,--

xxx xxx xxx

(iii) shows any object to a child in any form or media for pornographic purposes;"

2026:KER:26885

17. In this case, as rightly pointed out by the learned

counsel for the accused and the learned Public Prosecutor,

the evidence of PW1 alone is available to prove the

prosecution allegations and no attempt made by the

prosecution to go for further evidence by taking custody of

the mobile phone etc. However, no challenge raised during

cross-examination of PW1 on this point. Therefore, this

contention also is liable to fail.

18. Point Nos.5 and 6:- On re-appreciation of

evidence, none of the contentions raised by the learned

counsel for the accused to unsustain the verdict of the

Special Court found to be sustainable. Therefore, it is held

that the Special Court is right in finding that the accused

committed the offences punishable under Sections 4 read

with 3(a) and 3(c), 6 read with 5(l) and 5(m), 8 read with 7

and 12 read with 11(iii) of the POCSO Act . Therefore, the

conviction imposed by the Special Court does not require

any interference.

19. Coming to the sentence, twenty years is the

maximum sentence imposed upon the accused for the

offence under Section 6 read with 5(l) and 5(m) of the 2026:KER:26885

POCSO Act and the same is the statutory minimum

sentence provided for the said offence. Therefore, no

reduction in sentence is legally permissible.

20. Accordingly, the verdict impugned does not

require any interference and in such view of the matter, this

appeal must fail.

21. In the result, this criminal appeal stands

dismissed. All interlocutory applications pending in this

appeal stand dismissed.

Since the accused is in jail, the Registry is directed to

forward a copy of this judgment to the Jail Superintendent

concerned, forthwith, for information and further steps.

Sd/-

A. BADHARUDEEN SK JUDGE