By Himabindu Lingala

As per the First Information Statement (FIS), the accused who is a teacher, brought the victim studying in class 1 to staff room to sexual assault. According to the FIS the minor victim was directed to lay on the body of the accused, when the minor victim refused to comply, he was beaten with a stick, scared and coerced by the fear of further assault, the victim laid on the body of the accused. The Prosecution charged the accused under Section 9(f), Section 9(m) (Aggravated sexual assault) and Section 10 (Punishment for aggravated assault) of POCSO Act and Section 23 (Punishment for cruelty to child) of Juvenile Justice Act.

The accused sought discharge for offences under S.9(f), S.9(m) and S.10 of POCSO, and initially filed a discharge petition before the trial court, which was subsequently dismissed. A Criminal Revision petition was filed before the Kerala High Court, under S.438 (Calling for records to exercise power of revision) and S.442 (High Court’s power of revision) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), challenging the order issued by the Special Court for trial of offences under the Protection of Children from Sexual Offences Act (POCSO).

The Special Court observed that Section 7 of the POCSO Act clearly establishes that various forms of contact fall within the purview of sexual assault. The Special Court stressed that the definition of the offense under Section 7 is not limited to touching or acts involving private parts but also confines any other act with sexual intent which involves physical contact without penetration. The Special Court relied on Section 29 (Presumption as to certain offences) and Section 30 (Presumption of culpable mental State) of the POCSO Act and dismissed the discharge petition.

The High Court affirmed the findings of the Special Court, noting that any physical contact made with sexual intent constitutes to sexual assault and reiterated that the overt acts of the accused demonstrate physical contact between the minor victim and the accused. The High Court also held that under Section 30 of the POCSO Act, the Special Court is entitled to presume the mental state of the accused and it shall be a defence for the accused to prove that no such mental state existed.

The High Court of Kerala confirmed the views of the Special Court and the revision petition filed was dismissed.

Case Title: Ajith Prasad Edacherry v. State of Kerala,

Citation: 2024 SCC OnLine Ker 6854

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