Kerala High Court
Xxxxxx vs State Of Kerala on 3 July, 2026
2026:KER:49155
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 3RD DAY OF JULY 2026 / 12TH ASHADHA, 1948
CRL.A NO. 103 OF 2024
CRIME NO.908/2020 OF THALIPARAMBA POLICE STATION, KANNUR
AGAINST THE JUDGMENT DATED 11.12.2023 IN S.C. NO.479 OF 2020 OF FAST
TRACK SPECIAL COURT, TALIPARAMBA
APPELLANT/ACCUSED:
XXXXXXXXXX
AGED XXXXXX YEARS
XXXXXXXXXX
BY ADVS.
SHRI.PRASOON SUNNY
SMT.RAJI S.
SMT.RITTY K.REJI
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
PIN - 682031
PP - SRI.M A SHIHAB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.07.2026,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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"C.R"
JUDGMENT
Dated this the 3rd day of July, 2026
The sole accused in S.C. No.479/2020 on the files
of the Fast Track Special Court, Taliparamba, has filed this
appeal, under Section 374(2) of the Code of Criminal
Procedure, 1973, challenging the conviction and sentence
imposed by the Special Judge, against him as per the
judgment dated 11.12.2023. 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 354B, 354D(ii), 376(3) and 506(i)
of the Indian Penal Code [hereinafter referred as ‘IPC‘ for
short] and under Sections 3(a) read with 4(2), 5(p) read with
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6, 7 read with 8, 9(l) read with 10, 9(p) read with 10 and
11(iv) read with 12 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, at
about 02.00 p.m. on 31.07.2020, the accused came to the
backside of the residence of the victim, aged 15 years,
threatened her and took her to the nearby rubber plantation
and thereafter, the victim was disrobed and the accused
pressed on her breast with sexual intention. Then, after
removing his clothes, the accused inserted his genital into
the vagina of the victim. On this premise, the prosecution
alleges commission of the above said offences by the
accused.
5. After framing charge for the offences punishable
under Sections 354B, 354D(1)(ii), 376(3) and 506(i) of the
IPC and under Sections 3(a) read with 4(2), 5(p) read with 6,
7 read with 8, 9(l) read with 10, 9(p) read with 10 and 11(iv)
read with 12 of the POCSO Act, the Special Court recorded
evidence and completed trial. During trial, PWs 1 to 14 were
examined, Exts.P1 to P32 and MO1 to MO7(a) were marked
on the side of the prosecution. During cross-examination of
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PW1, Exts.D1 and D2 contradictions were marked and during
cross-examination of PW2, Ext.D3 contradiction was marked.
No other defence evidence adduced.
6. On appreciation of evidence, the Special Court
found that the accused was guilty for the offences
punishable under Sections 354B, 376(3) and 506(i) of the IPC
and under Sections 3(a) read with 4(2), 7 read with 8, 9(l)
read with 10 and 11(iv) read with 12 of the POCSO Act.
Accordingly, the accused was convicted for the said offences
and sentenced as under:
“1. The accused has been found guilty and
convicted and sentenced to simple imprisonment for
2 (Two) years and also to pay a fine of Rs.25,000/-
(Rupees Twenty five thousand only) in default Simple
Imprisonment for 3 (three) months u/s. 506(i) of IPC.
2. The accused has been found guilty and
convicted and sentenced to simple imprisonment for
5 (Five) years and also to pay a fine of Rs.25,000/-
(Rupees Twenty five thousand only) in default Simple
Imprisonment for 3 (three) months u/s. 354B of IPC.
3. The accused has been found guilty and
convicted and sentenced to simple imprisonment for
20 (Twenty) years and also to pay a fine of
Rs.1,00,000/- (Rupees One Lakh only) in default
Simple Imprisonment for 3 (three) months u/s.
376(3) of IPC.
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4. The accused has been found guilty and
convicted and sentenced to simple imprisonment for
20 (Twenty) years and also to pay a fine of
Rs.1,00,000/- (Rupees One Lakh only) in default
Simple Imprisonment for 3 (three) months u/s. 3(a)
r/w 4(2) of POCSO Act.
5. The accused has been found guilty and
convicted and sentenced to simple imprisonment for
5 (Five) years and also to pay a fine of Rs.25,000/-
(Rupees Twenty five thousand only) in default Simple
Imprisonment for 3 (three) months u/s. 7 r/w 8 of
POCSO Act.
6. The accused has been found guilty and
convicted and sentenced to simple imprisonment for
5 (Five) years and also to pay a fine of Rs.25,000/-
(Rupees Twenty five thousand only) in default Simple
Imprisonment for 3 (three) months u/s. 9(l) r/w 10 of
POCSO Act.
7. The accused has been found guilty and
convicted and sentenced to simple imprisonment for
3 (Three) years and also to pay a fine of Rs.25,000/-
(Rupees Twenty five thousand only) in default Simple
Imprisonment for 3 (three) months u/s. 11 r/w 12 of
POCSO Act.
8. Sentence imposed shall run concurrently.
9. Accused is entitled to set off.
10. In the event of realisation of fine amount,
the entire amount can be given to the victim as
compensation u/s. 357(1)(b) of Cr.P.C.
11. MOS can be destroyed after the period
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prescribed for preferring appeal.”
7. The learned counsel for the accused/appellant
raised multiple contentions to unsustain the verdict
impugned by giving benefit of doubt to the accused. The
prime contention raised is that, even though the occurrence
was on 31.07.2020, no complaint lodged for a period of 35
days and the crime was registered recording the First
Information Statement given by PW1 (the victim) only on
04.09.2020. According to the learned counsel for the
accused, no sufficient explanation is given for the delay in
lodging the FIR and therefore, the same is fatal to the
prosecution. It is argued further that, the Special Court
entered into conviction for the offence punishable under
Section 506(i) of the IPC, though no remote piece of
evidence available to find commission of the said offence by
the accused. It is submitted by the learned counsel for the
accused further that, even though PW1 admitted that the
accused did not use any force to remove dress of the victim,
when MO1 churidar top was produced for chemical analysis
before the FSL, as per Ext.P24(a) report, the same was torn
and it is an improbability to disbelieve the prosecution case.
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It is also submitted that, in MO7(a) the Jockey underwear
worn by the accused, which was recovered after 35 days of
the occurrence found to have the presence of human
spermatozoa as per Ext.P24(a) report. In fact, the presence
of human spermatozoa in MO7(a), recovered after a period of
35 days of the occurrence also would shadow doubt in the
prosecution case. Thus, the learned counsel for the accused
pressed for interference in the verdict impugned, by
acquitting the accused giving benefit of doubt.
8. Whereas, the learned Public Prosecutor would
submit that, as far as the delay in lodging Ext.P13 FIR is
concerned, the learned Special Judge addressed this
question in paragraph Nos.24 to 26 of the judgment and
found that the explanation offered by the prosecution was
logical in this regard and therefore, the delay was not found
as fatal. It is also pointed out by the learned Public
Prosecutor that, in this case, the victim was a child below 18
years at the time of occurrence. Therefore, non-resistance
and other consequences as argued by the learned counsel
for the accused have no significance, while appreciating the
evidence with a view to find the ingredients for the offences
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alleged to be committed by the accused, as found by the
learned Special Judge. According to him, no iota of doubt
could be seen from the evidence adduced and discussed by
the learned Special Judge. Therefore, the conviction and
sentence imposed by the learned Special Judge are liable to
be confirmed.
9. In view of the rival submissions, the points arise for
consideration are:
1. Whether the contention raised by the
learned counsel for the accused that the delay in
lodging the FIR for a period of 35 days is not
properly explained and the same is fatal to the
prosecution, is sustainable?
2. Whether the Special Court is justified in
finding that the accused committed the offence
under Section 354B of IPC?
3. Whether the Special Court is justified in
finding that the accused committed the offence
under Section 376(3) of IPC?
4. Whether the Special Court is justified in
finding that the accused committed the offence
under Section 506(i) of IPC?
5. Whether the Special Court is justified in
finding that the accused committed the offence
under Section 3(a) read with 4(2) of the POCSO
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9Act?
6. Whether the Special Court is justified in
finding that the accused committed the offence
under Section 7 read with 8 of the POCSO Act?
7. Whether the Special Court is justified in
finding that the accused committed the offence
under Section 9(l) read with 10 of the POCSO Act?
8. Whether the Special Court is justified in
finding that the accused committed the offence
under Section 11(iv) read with 12 of the POCSO
Act?
9. Whether the verdict of the Special Court
would require interference?
10. Order to be passed?
10. Point No.1:- In this matter, the prosecution case
is that, at about 02.00 p.m. on 31.07.2020, the accused
reached the backside of the residence of the victim, a
minor girl, threatened her and took her to the nearby
rubber plantation and committed rape on her. The victim
got examined as PW1 and she admitted that Ext.P1 FIS was
given by her. Ext.P1 would go to show that the same was
recorded on 04.09.2020, based on which Ext.P13 FIR was
registered. Thus, evidently the occurrence was reported
after 35 days, as submitted by the learned counsel for the
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accused. In the FIS it is stated that, PW1 did not disclose
the occurrence to her parents as she was threatened by the
accused that he would kill her on divulging the occurrence
to anybody. Thus, the reason for the delay in lodging the
FIS is the threat at the instance of the accused. No
challenge raised by the defense as to why the occurrence
was not disclosed till 04.09.2020, during the examination or
cross-examination of PW1. It is discernible that, PW1
otherwise given evidence in support of the FIS and and she
deposed threat as the reason for non-disclosure of the
event till 04.09.2020, which was disclosed before the Child
Welfare Committee on 04.09.2020. Accordingly, the Child
Welfare Committee intervened in the matter and thereafter,
Ext.P1 FIS and Ext.P13 FIR were registered. The learned
Special Judge addressed this issue in paragraph Nos.23 to
26 of the judgment, as pointed out by the learned Public
Prosecutor, relying on various decisions viz. Unnikrishnan
v. State of Kerala [2021 KHC 5844] , Sakhshi v. Union
of India [2004 (5) SCC 518] , State of Punjab v. Gurbit
Singh and Others [1996 (2) SCC 384] and
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Munsiprasad v. State of Bihar [AIR 2001 SC 3031],
while holding that the crime was discretely committed by
the accused, who made acquaintance with the victim and
the delay was properly explained. On the basis of the
evidence discussed, the explanation given by the
prosecution regarding the delay in lodging the FIR found to
be acceptable. In view of the above discussion, the learned
Special Judge is justified in finding so. Therefore, the delay
in lodging the FIR, as pointed out by the learned counsel for
the accused, is found to be not fatal and the same is set at
rest.
11. Point Nos.2 to 8:- In this case, the prime witness
is none other than the victim, who was examined as PW1.
The prosecution relied on Ext.P26 SSLC book to prove the
date of birth of the victim as 10.05.2005. Apart from that,
the prosecution relied on Ext.P25 copy of admission
Register issued by PW14, the Headmaster of ALP School,
Poonamgode to prove the date of birth of the victim and as
per which also the date of birth is similar as shown in
Ext.P1. There is no dispute raised by the accused regarding
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the status of the victim as a child, as defined under Section
2(d) of the POCSO Act and the learned Special Judge relied
on the same to hold the victim, as a child defined under
Section 2(d) of the POCSO Act. Since no challenge raised as
regards to the age of the victim and the prosecution
successfully proved the same, the said finding does not
require any interference.
12. As to the occurrence, the evidence of PW1 is very
relevant. PW1 deposed that, as on the date of examination
she completed 17 years and had completed Plus Two
Course. According to PW1, her date of birth is 10.05.2005
and Ext.P26 is her SSLC book. She testified that, the
accused is a friend of her father and she had occasion to
talk to him in connection with the marriage of her uncle
held on 27.10.2017. Then, the accused obtained her mobile
phone number used in her tab and the accused used to call
her. She deposed that, at about 6.30 p.m. on a day during
May, 2020, the accused reached on the backside of her
residence and caught hold on her hand with sexual intent.
She pushed away his hand and entered into her house.
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After one week, again the accused reached on the backside
of her residence and caught hold on her hand. This time
also she ran away after tossing his hands. PW1 deposed
further that, again on 31.07.2020, the accused reached on
the backside of her house, where there was rubber
plantation. Thereafter, the accused threatened her that he
would disclose about her love affair to her family members
and caught hold on her hand and brought her to the rubber
plantation. Then, he made her lie on the platform of the
plantation and kissed on her lips. Then, the accused lifted
her top and petticoat and caught hold on her breast. He
removed her pants and undergarment down and mounted
on the top of her and put his penis into her vagina two
three times. When she felt pain, she pushed away the
accused and got up. Then, the accused threatened her
that if the occurrence would be divulged to anybody, he
would kill her. PW1 identified the dress she worn at the time
of occurrence as MO1 to MO4. She also identified the
accused at the dock after naming him. PW1 also deposed
the time of occurrence as 02.00 p.m. and that she did not
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disclose about the occurrence to her family. Thereafter, on
04.09.2020, two persons from the Child Welfare Committee
reached her house and she narrated the occurrence to
them. On that day evening, the Police reached and she had
given statement regarding the occurrence. She identified
Ext.P1 as the statement so given. She also deposed about
her examination by the doctor. During cross-examination of
PW1, she deposed that she did not sustain any injury on
her vagina. The defense case suggested during cross-
examination is that, because of the animosity towards the
mother of the accused, this case was foisted against the
accused.
13. Even though, Exts.D1 and D2 contradictions were
extracted during cross-examination of PW1, as rightly
discussed by the learned Special Judge in paragraph No.40
of the judgment, the same are not material. The
observation of the learned Special Judge in paragraph
No.40 reads as under:
“40. While cross examining PW1, the defence
have brought out Ext.D1 and D2 contradictions.
Ext.D1 contradiction is related to the statements of
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15PW1 given before the police that she was
threatened by the accused on 31.07.2020, at 2 p.m,
while she was returning from a shop. The Ext.D2
contradiction was about the denial of the
prosecution claim that it was upon the threat
caused, the survivor has to obey to his direction to
come to the rubber plantation. From the PW2
mother, it has become very clear that even though
the place of occurrence is less than 20 meters from
the main road, as it is covered with shrubs and
creepers it is not possible for anyone walking
through the road to properly see the place of
occurrence. A study of the testimony of PW1 has
convinced the court that even after bringing out the
Ext.D1 and Ext.D2 contradiction sill the testimony
of PW1 remain almost unchallenged, reliable and
creditworthy.”
14. The mother of the victim was examined as PW2.
She supported the prosecution case and deposed that she
came to know about the incident only when officials from
the child line had visited her house. She had identified her
signature in Ext.P3 seizure mahazar prepared by the police,
while seizing MO1 to MO4. PW2 had also identified the
signature in Ext.P4 seizure mahazar prepared while seizing
MO5 tab. Regarding Ext.D3 contradiction extracted as that
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of PW2 during her cross-examination also, the learned
Special Judge found the same is not material as stated in
paragraph No.58 and the said finding only to be justified.
15. PW12 examined in this case is a social worker
attached to Kannur Child Protection Committee. She had
deposed about her visit to the residence of PW1, to
converse with her about the crime. She had deposed that,
PW1 had disclosed about the crime in detail to her and she
had informed the matter to the police. PW12 had also
clarified that she had visited the residence of PW1 as
instructed by the Child Protection Officer, Kannur.
16. PW9 had also pointed out that, while working as
a teacher in Pacheni High School, she was entrusted with
the task to provide counseling to the students. In order to
ascertain things, the teacher had also visited the residence
of PW1 and confirmed the grievance. PW10 had admitted
about recording Ext.P1 FIS on 04.09.2020.
17. PW3, the doctor working as consultant at Taluk
Headquarters Hospital in Taliparamba had examined the
victim on 05.09.2020 and issued Ext.P5 medical
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examination report. The doctor had deposed about the
history told by the aggrieved before her. The victim had
also informed the doctor about certain difficulty during
urination. Further, the doctor had pointed out that the
hymen of the victim was ruptured in three ‘O’ clock
position. Finally, the doctor had opined about possible
sexual assault on PW1.
18. PW5, an independent witness from the same
locality had deposed that he had put signature in Ext.P7
and Ext.P8 scene mahazars and in Ext.P9 seizure mahazar
prepared at the time of recovering the dress of the
accused. PW6 had deposed further that she was the owner
of property, wherein the crime was committed on
31.07.2020.
19. PW11, a senior WCPO of Taliparamba Police
Station was entrusted with the duty to accompany the
victim before the doctor and court, supported the same.
PW11 also deposed that she had witnessed the preparation
of Ext.P3 and Ext.P4 seizure mahazars also. The Village
Officer of Kooveri village was examined as PW8 and he had
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testified about giving Ext.P11 series of site plans as well as
Ext.P12 series of possession certificate. As per Ext.P12(a)
the rubber plantation belongs to PW6, Deepa, whereas the
Ext.P12 would make it clear that the residence of PW1 and
property attached there to belonged to her mother
Vijayakumari @ Vijaya K.
20. PW13 had arrested the accused at 10.15 hours
on 05.09.2020 and witnesses of the arrest memo were
brother and relative of the accused. Ext.P14 series are the
arrest memo and inspection memo. Ext.P14(a) inspection
memo makes it clear that there was a wound on the left
palm of the accused at the time of arrest. When
investigation officer had ensured the correct name and
address of the accused, Ext.P15 address report was filed
which was tendered into evidence. The seized object MO1
to MO5 were filed before the court through Ext.P16 to
Ext.P19 property list.
21. In the FIR, the name of the complainant was
originally recorded as Vishnupriya.K. However later on
conforming her real name as Krishnapriya K, for the
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purpose of carrying correction, Ext.P20 correction report
was filed. As a matter of abundant caution, prosecutor had
recalled PW1 and through her Ext.P26 copy of SSLC book of
the victim was tendered in order to convince that the real
name of the PW1 as Krishnapriya K.
22. PW4, the doctor of Taliparamba Taluk Hospital
had medically examined the accused at 3.20 p.m on
05.09.2020 and issued the Ext.P6 potency certificate.
According to PW4, his opinion is that “there is nothing to
suggest that the accused is incapable of performing sexual
act”.
23. PW13 had deposed before the court about the
registration of the crime, the investigation conducted,
document collected, statements of witnesses taken and the
filing of final report. PW13 had deposed before the court
that it was on the basis of the Ext.P9(a) confession given by
the accused, the cloth worn by him was seized by preparing
Ext.P9 seizure mahazar. MO6 mobile and MO7 series of
cloth of accused were already marked and it was admitted
by the witness. In order to give more clarity, the ownership
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of the property, wherein accused resides and from where
on preparing Ext.P9, MO6 and MO7 were seized, Ext.P21
ownership certificate was produced. Ext.P22 is site plan of
the residence of the accused.
24. On evaluation of the evidence available, the
learned Special Judge entered into presumption under
Section 29 of the POCSO Act, mainly relying on the
evidence of PW1, supported by other evidence and found
that the accused committed the offences punishable under
Sections 354B, 376(3) and 506(i) of the IPC and under
Sections 3(a) read with 4(2), 7 read with 8, 9(l) read with 10
and 11(iv) read with 12 of the POCSO Act.
26. Although it is argued by the learned counsel for
the accused that, there is no evidence to find commission of
offence punishable under Section 506(i) of IPC by the
accused, threat at the instance of the accused was well
spoken by PW1, as discussed. Therefore, this challenge must
fail. As regards to the contention raised by the learned
counsel for the accused that, as per the Chemical Analysis
Report, MO1 churidar top was torn, though there was no
physical resistance at the instance of PW1, tear in the
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churidar if available even prior to the occurrence, then also
that could be noticed by the Expert. Thus, in the instant
case, the said finding is of no serious consequence.
27. Regarding the anomaly in finding human
spermatozoa in MO7(a), which was seized after 35 days is
concerned, if MO7(a) was kept unwashed, the likelihood of
finding human spermatozoa could not be ruled out. Since
PW1 given categoric evidence that she was subjected to
aggravated sexual assault, there is no reason to find
improbability as to the presence of human spermatozoa in
MO7(a). Thus, all the contentions raised by the learned
counsel for the accused found to be unsustainable.
28. Point Nos.9 and 10:- On re-appreciation of
evidence, the ingredients for the offences punishable under
Sections 354B, 376(3) and 506(i) of the IPC and under
Sections 3(a) read with 4(2), 7 read with 8, 9(l) read with 10
and 11(iv) read with 12 of the POCSO Act could be found, as
rightly found by the learned Special Judge. Therefore, it is
held that the Special Court is right in finding that the
accused committed the above said offences. Thus, the
conviction imposed by the Special Court does not require
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any interference.
29. Coming to the sentence, twenty years is the
maximum sentence imposed upon the accused for the
offences punishable under Sections 376(3) of IPC and 3(a)
read with 4(2) of the POCSO Act and the same is the
statutory minimum sentence provided for the offence under
Section 3(a) read with 4(2) of the POCSO Act. Therefore, no
reduction in sentence is legally permissible. Accordingly, the
verdict impugned does not require any interference and in
such view of the matter, this appeal must fail.
30. 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, for information and compliance.
Sd/-
A. BADHARUDEEN
SK
JUDGE
