Ullas Purashan vs State Of Kerala on 9 July, 2026

July 10, 2026

Kerala High Court

Ullas Purashan vs State Of Kerala on 9 July, 2026

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                          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          

                                                  PRESENT
                                                  

               THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
               

                                                     &
                                                     

                      THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
                      

                        TH
                        
         THURSDAY, THE 9
                           DAY OF JULY 2026 / 18TH ASHADHA,
                                                            1948

                                   CRL.A No. 235 OF 2020
                                   

     AGAINST
            THE
                 JUDGMENT
                          DATED
                                31.10.2019
                                           IN
                                              SC
                                                 NO.384
                                                        OF
                                                           2014
                                                                OF
     THE 
         SPECIAL 
                   COURT 
                          UNDER 
                                 THE 
                                      PoCSO 
                                             ACT, 
                                                   (IST 
                                                         ADDITIONAL
     SESSIONS JUDGE), THODUPUZHA.
     


     APPELLANT
             /ACCUSED:
              

                          LLAS PURASHAN
                          U
                          AGED 53 YEARS
                          
                          S/O. PURASHAN, KAMALALAYAM HOUSE, COMBAYAR KARA,
                          
                          COMBAYAR BAHGOM, PARATHODU VILLAGE, NEDUMKANDOM
                          
                          UDUMBANCHOLA TALUK, IDUKKI DISTRICT-685 571.
                          


                          Y ADVS.
                          B
                          SHRI.FRANCIS ASSISI
                          
                          SRI.M.D.SASIKUMARAN
                          
                          SRI.K.P.SUBAIR
                          
                          SMT.AMRUTHA P S
                          
                          SHRI.AJEESH S.BRITE
                          
                          SMT.STEPHY THANKACHAN
                          
                          SRI.P.A.MOHAMMED ASLAM
                          
                          SHRI.ARTHUR B. GEORGE
                          
                          SHRI.MUHAMMED RISWAN K.A.
                          
                          SHRI.MIDHUN MOHAN
                          
 CRL.A No. 235 of 2020                :2:                   2026:KER:49663




                          SHRI.RAMSHAD K.R.
                          


     RESPONDENT

              /COMPLAINANT:
               

                          TATE OF KERALA
                          S
                          REPRESENTED BY INSPECTOR OF POLICE,
                          
                          NEDUMKANDOM POLICE STATION,
                          
                          IDUKKI DISTRICT, PIN-685 553,
                          
                          THROUGH PUBLIC PROSECUTOR,
                          
                          HIGH COURT OF KERALA, ERNAKULAM,
                          
                          KOCHI-682 031.
                          


                          Y ADV SHEEBA THOMAS, SR.PUBLIC PROSECUTOR,
                          B
                          SMT. JASMINE V.H., SR. PUBLIC PROSECUTOR.
                          

     HIS 
     T     CRIMINAL 
                     APPEAL 
                             HAVING 
                                     COME 
                                           UP 
                                               FOR 
                                                    FINAL 
                                                           HEARING 
                                                                    ON
     09.07.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
     
 CRL.A No. 235 of 2020                         :3:                                    2026:KER:49663




                                           J U D G M E N T

     Raja Vijayaraghavan, J.

This appeal is filed challenging the judgment in S.C. No.384 of 2014

rendered by the Special Court for the Trial of Offences under the Protection of

SPONSORED

Children from Sexual Offences (PoCSO) Act, Thodupuzha. In the aforesaid case,

the appellant faced indictment for having committed offences punishable under

Sections 376(2)(f) & (i) and 506(i) of the IPC and under Section 4 of the

Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as

’PoCSO Act‘).

2. By the impugned judgment dated 31.10.2019, the appellant was

foundguiltyforoffencespunishableunderSection376(2)(f),376(2)(i)and506(i)

IPC and also under Section 4 of the PoCSO Act. He was sentenced to undergo:

(a) Imprisonment for life and to pay a fine of ₹50,000/- (Fifty Thousand

only) with a default clause under Section 376(2)(f) of IPC.

(b) Imprisonment for life and to pay a fine of ₹50,000/- (Fifty Thousand

only) with a default clause under Section 376(2)(i) of IPC.

thousand only) with a default clause under Section 506(i) of IPC.
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In view ofSection42ofthePoCSOAct,noseparatesentencewaspassed

for the offence punishable under Section 4 of PoCSO.

The Prosecution Case & Registration of Crime:

3. The appellant is the son of the elder sister of the mother of the

victim.Heisresidingneartothehouseofthechild,whowaslivingwithherfather

(PW7),mother(PW1)andyoungerbrother(PW5).Thevictimwasjust6yearsold

at the time of occurrence. On 21.12.2013 at about 11:30 a.m., the appellant is

allegedtohavetakenthetwochildrentohishouseandthenaskedthebrotherto

gooutandplay.Itisallegedthatthechildwastakentothebedroomofthehouse

oftheappellantsituatedatNedumkandamGramapanchayat,andafterthreatening

the child, subjected her to sexual assault. It isfurtherallegedthattheappellant

threatenedandintimidatedthechildandherbrotherthatiftheyweretodisclose

the incident to any person, they would be done away with.

4. According to the prosecution, the childdidnotdisclosetheincident

to anyone. A lady by name Vanaja, who is working as an Anganwady teacher,

alerted PW6, the classteacher,andrequestedhertoenquirewiththechildasto

whether she was being subjected to physical abuse by the appellant. When the

schoolreopened,PW6tookasidethechildandaskedherandthechildisalleged
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tohavedisclosedthattheappellantusedtotouchandlickhergenitalsandlieon

top of her. The teacher contactedPW1,themotherofthechild.PW1cameback

home and enquired about the incident to the child. She then went to the

Nedumkandom Police Station and lodged a complaint on 03.01.2014, based on

which, Crime No. 5 of 2014 was registered.

Investigation and Trial:

5. TheinvestigationwasinitiallyconductedbyPW11,theSub-Inspector

of Police, Nedumkandam Police Station. Ext.P1 statement of the mother was

recorded by a WCPO, based on which Ext.P9 FIR was registered. He then

conducted the investigation. He went to the scene of the crime and prepared

Ext.P4SceneMahazar.Onthesamedayitselfat12noon,hearrestedtheaccused

and prepared an arrest memo (Ext.P10).Detailingthenameandaddressofthe

accused Ext.13 address report was sent to the jurisdictional court.

6. The investigation was then taken over by PW12 on 7.3.2014. On

15.5.2014, the investigation was taken over by PW15, the Inspector of Police,

Nedumkandam. On 31.05.2014, the clothes which were allegedly worn by the

victimatthetimeoftheincidentwereproducedbyPW1andthesamewasseized

as per Ext.P5 Mahazar. The same was included in Ext.P16 property list, and the
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same was forwarded to the Court. On 05.06.2014, the child was taken to the

District Hospital, Idukki, and got the victim examined by the gynaecologist. The

objects which were handed over by the doctor after examinationwereseizedas

perExt.P6Mahasar.Thepolicecustodyoftheaccusedwasobtainedfrom16/6/14

to18/06/2014,andonthebasisofthedisclosurestatementgivenbytheaccused,

the clothes worn by the accused at the timeoftheoccurrencewereseized.The

same was forwarded to the jurisdictional court as per Ext.P17 property list.

Thereafter,heinitiatedstepstoobtaintheBirthCertificateofthevictimchild.The

material objects were forwarded to theChemicalExaminer’slab,forexamination

and report. Ext.P19 is areportofchemicalexaminationwhichwasreceivedfrom

the Forensic Science Lab.

7. Aftercompletionoftheinvestigation,thefinalreportwaslaidbefore

the Judicial Magistrate of the First Class, Nedumkandam. After committal, when

theaccusedappearedbeforethecourt,thelearnedSessionsJudge,afterhearing

theprosecutionaswellastheaccused,framedthechargeagainsthim.Whenthe

charge was read over, he pleaded not guilty and claimed that he be tried in

accordance with the law.

8. On the side of the prosecution, as many as 15 witnesses were

examined as PWs 1to15,andthroughthem,Exts.P1toP20wereexhibitedand
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marked. The 164 statement of the child was marked as Ext.C1. Materialobjects

were produced and identifiedasMOs1to3.Aftertheclosureoftheprosecution

evidence, the incriminating materials arising from the evidence were put to the

accused underSection313(1)(b)oftheCodeofCriminalProcedure.Theaccused

deniedtheentirecircumstancesand,inthewrittenstatementfiledbyhim,stated

thattheparentsoftheprosecutrixareoninimicaltermswiththeappellant.They

managedtoinfluencePW6,andimplicatedhimfalsely.Itisfurtherstatedthathe

was impotent.As there was no scope for an acquittal under Section 232 of the

Code, the accused was asked to enter uponhisdefence.ThelearnedMagistrate

who recorded the 164 statement of the victim was examined as DW1.

Findings of the learned Sessions Judge:

9. The learnedSessionsJudge,afterevaluationoftheentireevidence,

came totheconclusionthattheflawsininvestigationpointedoutbythedefence

were liable to beignored.RelyingontheobservationsoftheApexCourtinRam

BihariYadavvStateofBiharandOthers1,AbuThakir&Ors.v.State2 and

StateofKarnatakav.YarappaReddy3,itwasheldthatcriminaljusticeshould

notbemadeacausalityforthewrongscommittedbytheInvestigatingOfficersin

1
IR 1998 SC 1850
A
2
AIR 2010 SC 2119
3
AIR 2000 SC 185
CRL.A No. 235 of 2020 :8: 2026:KER:49663

thecase.TheCourtheldthatthetestimonyofawitnesstotheoccurrenceiffound

to be true, the Court is free to act on it, albeit the flaws in investigation. The

learned Sessions Judge held that testimonies of PW1,PW2,PW5,PW6andPW7

are credible and could be relied upon. The failure of the prosecution to get the

child medically examined promptly, and the discrepancies in the evidence were

ignored, and it was also held that the accused has failed in rebutting the legal

presumptions cast against him u/s 29 and 30 of the PoCSO Act. The Court

concluded that the prosecution has succeeded in proving that the accused has

committed offences punishable under Sections 376 (2) (f) and (i)and 506 (i) of

IPC and Section 4 of the PoCSO Act.

Submissions advanced:

10. The learned counsel appearing for the appellant submitted that

serious prejudice has been caused totheappellantsincedespitetheseriousness

oftheoffenseandthelikelihoodoftheappellantbeingsentencedtoimprisonment

for life, the learned Sessions Judge did not deem it necessary to appoint a

competent advocate to defend the appellant. The witnesses were not properly

cross-examined, and the discrepancies were not properly highlighted before the

learned Sessions Judge. It is submitted that the appellant was aged about 48

years when the incident was allegedly committed and he is now aged 60years.
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The learned counsel would take this Court through the evidence and it was

pointed out that there is a long and undue delay in setting the law in motion.

Though the incident hadallegedlytakenplaceon21.12.2013,thelawwassetin

motiononlyon03.01.2014.On03.01.2014itself,theaccusedwasarrested.From

theevidenceoftheInvestigatingOfficer,whowasexaminedasPW11,itisevident

that on 04.01.2014 itself, the child was taken to the hospital for the purpose of

medical examination. From his evidence, it is discernible that no injuries

whatsoever were noted on the body of the child. It was after PW15 had taken

over the investigation that the child was taken to the gynecologist and she was

examined on 05.06.2014,almost5monthsaftertheincident.The164statement

wasalsorecordedonlyafterPW15hadtakenovertheinvestigation.Accordingto

the learned counsel, the delay on the part of the Investigating Agency in not

medically examining the child and also the failure oftheInvestigatingAgencyto

produce the medicalrecordsbeforetheCourt,tosubstantiatethatthechildwas,

infact,takentothehospitalonthenextdayoftheincident,wouldthrowserious

doubts on the case of the prosecution. It is further submitted by the learned

counsel that reading of theevidenceofPW1,themotherofthechild(PW1),the

victim (PW2), the brother of the victim (PW5) and the teacher (PW6) to whom,

the child is alleged to have disclosed about the incident would reveal that there

are numerous discrepancies in the evidence and it is not safe to rely upon the
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same.Accordingtothelearnedcounsel,thepresumptionunderSection29willnot

applyintheinstantcaseastheprosecutionhasfailedtoestablishthefoundational

facts. To establish the said contention, the learned counsel has relied on the

judgment rendered inPappu v. State of U.P4.

11. The learned public prosecutor submitted that the contentions

advanced by the learned counsel is meritless. According to the learned counsel,

the prosecution had established that the child was a minor at the time of the

incident and the medical examination report established that she had been

subjected to sexual abuse. The evidence of the victim, her parents and brother

was rightly relied on by the learned Sessions Judge to arrive at the finding of guilt.

12. We have carefully considered the submissions advanced by the

learned Public Prosecutor as well as the learned counsel appearing for the

appellant and have perused the records.

Evaluation of Evidence:

13. The firstquestionthatistobeanswerediswhetherthechildwasa

minor at the time of the occurrence. In order to establish the said fact, the

prosecution relies on the evidence of PW2, the child herself. In her chief

4
2022 10 SCC 321
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examination, she stated that her date of birth is 09.10.2006. When PW1, the

mother of the child, entered the box, she also deposed that thedateofbirthof

the child is 09.10.2006. Onthesideoftheprosecution,theclerkattachedtothe

Nedumkandam Gramapanchayat was examined as PW14. In his evidence, he

statedthatoneK.J.JosephwasthePanchayatSecretaryofNedumkandam,who

isnownomore.TheaforesaidK.J.JosephwastheRegistrarofbirthsanddeaths.

He stated that Sri. K. J. Joseph had issued Ext.P15 Birth Certificate. In Ext.P15,

the dateofbirthofthechildisshownas09.10.2006.Wefindthereisnoserious

cross-examination to the evidence tendered by PW2, PW1 or PW14 by the

accused.Inthatviewofthematter,wehavenodifficultyinholdingthatthechild

was a minor at the time of the incident.

14. The next question is whether the evidence established that the

appellant had subjected the child to sexual abuse. In order toestablishthesaid

fact,theprosecutionhasexaminedPW1,themotherofthechild,PW2,thevictim,

PW5, the brotherofthechild,PW6,theteachertowhomthechildhaddisclosed

about the abuse and PW7, the father of the child.

15. PW1, the mother of the victim, stated that the date of birthofthe

victim is 09.10.2006. According to her, the alleged incident took place in the

month of December 2013. At that point of time, she, along with the victim,her
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husbandandherson,wereresidingatKombayar.Thevictimwasatthatpointof

timestudyingattheSt.ThomasLPSchoolintheIIStandard.Shestatedthatshe

was informed about the incident by Bindhu teacher (PW6), who is a teacher

attached to the St. Thomas LP School. On 02.01.2014, the teacher called the

mother and told her that when the child had come to the school, she had

complained of certain difficulties. The teacher enquiredwiththechildastowhat

had taken place. She stated that the child told her that oneUllashadsubjected

thechildtosexualabuse,andsheaskedthemothertoenquireintothesame.The

motherreturnedtothehouseandenquiredwithherdaughter.Shestatedthatthe

accused is a relative of her husband. When sheenquiredwithherdaughter,she

stated that during Christmas vacation, the accused took her daughteraswellas

her brother to his house, and after asking her son to goandplay,theappellant

laid her onthebedandsubjectedhertosexualabuse.Shegraphicallydescribed

what was done tothechildastoldtoherbythechild.Shestatedthatwhenthe

appellanthadlainontopofher,thechildcriedoutandatthatpointoftime,her

son, who wasexaminedasPW5,cametotheroom.Shestatedthattheaccused

had allegedly threatened her minor child (PW2) as well as her son (PW5). On

receivingtheaforesaidinformationfromherchild,sherushedtothePoliceStation

andlodgedacomplainton03.01.2014.SheidentifiedhersignatureinExt.P1FIS.

She also identified the accused, who was standing in the dock. She stated that
CRL.A No. 235 of 2020 :13: 2026:KER:49663

later she had handed over the clothes of her daughter to the police.Shestated

that an additional statement was furnished by her to the police. When she was

cross-examined,shestatedthattheadditionalstatementwasrecordedafterabout

3 months. Some omissions were brought out while cross-examining her. She

statedthatatthetimeoflodgingtheFIS,shehadnotstatedtothepolicethatthe

accused had inserted his penis into the vagina of the child. She stated that she

waspresentlyresidingatAmritanandamayiMadamwithherchildrenandthatshe

had separated from her husband. When she was asked whether there was any

propertydisputebetweenherfamilyandtheappellant,shestatedthatthereisno

such dispute. According to her, her husband’s mother had lodged a complaint

against the appellant, but she added thattherearenodisputesorlitigationwith

the appellant. When she was asked whether she had noticed any blood or any

otherstainsontheclothesofthevictimchild,sheansweredinthenegative.She

stated that when the child narrated the incident to her, her husband was not

present.

16. PW2isthevictim.Shestatedthatatthetimeofexaminationbefore

thecourt,shewas13yearsofage.Accordingtoher,shewasbornon09.10.2006.

The learned Sessions Judge conducted a voir dire examination and came to the

conclusion that the child was capable ofgivingrationalanswerstothequestions
CRL.A No. 235 of 2020 :14: 2026:KER:49663

put to her and that sheiscompetenttogiveevidence.Inherchiefexamination,

she stated that her mother had gone for employment and at about noon, the

appellant came to her house and invited her and her brother to his house. She

stated thatherbrotherwasaskedtogooutandplay.Thenshewastakeninside

thebedroomofthehouse.Shestatedthatherclotheswereremovedandshewas

made to lie on the bed. She stated that the accused kissed her on her body.

Thereafter, he attempted to insert his penis into her vagina.Shestatedthatshe

feltpain.Shealsostatedthatshefeltbreathlessastheaccusedwaslyingontop

of her, and then she cried. Hearing her cries, her brother came to the room.

Immediately, the appellant stood up and threatenedherthatshewouldbedone

away with ifsheweretodisclosetheincidenttoanyperson.Shestatedthather

brother was also threatened with harm. When she was asked whentheincident

had taken place, she answered that it was during the Christmas vacation in the

year2013.Shestatedthatwhentheschoolwasreopened,theteacherconcerned

had asked her whether she was subjected to any abuse, and she had disclosed

the entire incident to Bindhu teacher. She stated that shewasstudyingintheII

Std. of the St. Thomas LP School. According toher,theappellantisarelativeof

herfatherandisresidingveryneartoherhouse.Shealsoidentifiedtheaccused,

who was standing in the dock. She stated that she had furnished a statement

before the police as well as the learned Magistrate. She identified the clothes
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which were worn by her at the time of occurrence. In cross-examination, she

statedthatshehasnotbeentutored.Accordingtoher,theappellanthadcometo

theirhouseandhadtakenthem.Shereiteratedthattheincidenthadoccurredat

12noon.Itwasbroughtoutthatinherpreviousstatementshehadnotdisclosed

that the appellant had attempted to insert his penis into her vagina.

17. PW3 is working as a JuniorConsultantinOrthopaedicsattheTaluk

Headquarters Hospital, Nedumkandom. He was examined to prove that he had

examined the accused on 16.06.2014,andhewasnotfoundtobeimpotentand

issued Ext. P2 report.

18. PW4istheVillageOfficer.HestatedthathehadpreparedExt.P3site

plan after visiting the scene of crime.

19. PW5isthebrotherofthevictim.Inchiefexamination,whenhewas

askedwhetherherememberedtheincidentinvolvingthevictimandtheappellant,

he answered in the negative. The learned Public Prosecutor then adopted an

objectionablepractice.Insteadofelicitingthewitness’sindependentrecollectionof

the occurrence, what the learned Public Prosecutor did instead was to readout,

verbatim,thematerialportionsofthewitness’sstatementrecordedunderSection

161 CrPC and ask him whether he had said so to the police. The assent of the
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witness to having made such a statement to the police was then allowed to be

incorporatedintheevidence.Itwouldbeprofitabletorefertotherelevantportion

of the deposition of the witness:

ഈ കേസിലെ സംഭവം എപ്പോഴാണ് നടന്നതെന്ന്
ഓർക്കുന്നില്ല. എത്ര നാൾ മുമ്പ് നടന്നു എന്നും ഓർക്കുന്നില്ല.
കൂട്ടിൽ നിൽക്കുന്നയാൾ ഉല്ലാസ് ആണ്. ടിയാൻ എന്റെ
ബന്ധുവാണ്. ടിയാൻ ചേച്ചിയെ ദേഹോപദ്രവം ഏൽപ്പിച്ച
സംഭവം അറിയുമോ (Q) ഇല്ല (A). ചേച്ചിയെപ്രതിഉപദ്രവിച്ച
സംഭവം അറിയില്ല. എന്നോട് പോലീസ് വിവരങ്ങൾ
ചോദിച്ചു. പോലീസ് ചോദിച്ചപ്പോൾ ”ചേച്ചിയുടെ കരച്ചിൽ
കേട്ട് ഞാൻ മുറിയിൽ കയറി വന്നപ്പോൾ ഉല്ലാസ് ചേച്ചിയുടെ
മുകളിൽ കയറി കിടക്കുന്നതും ചേച്ചി നിലവിളിക്കുന്നതും
കണ്ട് ഞാനും കരഞ്ഞപ്പോൾ ഉല്ലാസ് എഴുന്നേറ്റു പോയി”
ഇപ്രകാരം ഞാൻ പോലീസിൽ മൊഴി പറഞ്ഞു. ഉല്ലാസ്
എന്നത് പ്രതിയാണ്.

20. This is not cross-examination for the purpose of contradiction

contemplatedunderSection145oftheEvidenceAct.Thepolicestatementwas,in

substance, read into the record as if it were the witness’s testimony,

notwithstandingthatSection162CrPCexpresslyforbidsanysuchuse.Section161

statements, being unsworn, untested by cross-examination, and recorded by an

investigating officer who may consciously or unconsciously shape theirform,are

treatedbytheCodewithdistrust.Section162CrPCbarstheirusealtogether,save
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for the narrow exception carved outintheproviso.Suchstatementscanonlybe

used to contradict a witness in the manner provided by Section 145 of the

Evidence Act.

21. In V.K. Mishra v. State of Uttarakhand 5, the Apex Court had

laid down the principles of law governing the use of statements of witnesses

recorded by the police under Section 161 of the Code. It was observed as under

6. Section 162 CrPC bars use of statement of witnesses
1
recorded by the police except for the limited purpose of
contradiction of such witnesses as indicated there. The statement
madebyawitnessbeforethepoliceunderSection161(1)CrPCcan
beusedonlyforthepurposeofcontradictingsuchwitnessonwhat
he has stated at the trial as laid down in the proviso to Section
162(1) CrPC. The statements under Section 161 CrPC recorded
during the investigation are notsubstantivepiecesofevidencebut
can be used primarily for the limited purpose: (i) of contradicting
suchwitnessbyanaccusedunderSection145oftheEvidenceAct;
(ii) the contradiction of such witness also by the prosecution but
with the leave of the Court; and (iii) the re-examination of the
witness if necessary.

7. The court cannot suo motu make use of statementsto
1
police not proved and ask questions with referencetothemwhich
areinconsistentwiththetestimonyofthewitnessinthecourt.The
words in Section 162 CrPC ’if duly proved’ clearly show that the
record of the statement of witnesses cannot be admitted in
evidencestraightawaynorcanbelookedintobuttheymustbeduly
proved for the purpose ofcontradictionbyelicitingadmissionfrom
the witness during cross-examination and also during the
cross-examinationoftheinvestigatingofficer.Thestatementbefore

5
(2015) 9 SCC 588
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theinvestigatingofficercanbeusedforcontradictionbutonlyafter
strict compliance with Section 145 of the Evidence Act, thatis,by
drawing attention to the parts intended for contradiction.

22. The doctrinal architecture governing the limits on use of 161

statements was laid down in the much-celebrated pronouncement of the Apex

CourtinTahsildarSinghAndAnothervsTheStateOfUttarPradesh6.The

questionbeforetheApexCourtwaswhetheromissionsinthe161statementcould

be treated as contradictions for purposes of Section 145, andinresolvingit,the

Hon’bleCourtanalyzedpreviousjudicialinterpretations,legislativehistory,andthe

intent behind the provision. The resulting propositions remain the most

authoritative statement on the use of statements recorded by the police in the

course of investigation:

“ 25. From the foregoing discussion the following propositions
emerge: (1) A statement in writing made by a witness before a
police officer in the course of investigation can be used only to
contradict his statement in the witness box and for no other
purpose;(2)statementsnotreducedtowritingbythepoliceofficer
cannotbeusedforcontradiction;(3)thoughaparticularstatement
is not expressly recorded, a statement that can be deemed to be
part of that expressly recorded can be used for contradiction, not
becauseitisanomissionstrictlyso-calledbutbecauseitisdeemed
to form part of the recorded statement; (4) such a fiction is
permissible by construction only in the following three cases: (i)
when a recital is necessarily implied from the recital or recitals

6
[1959 AIR SC 1012]
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found in the statement; illustration: in the recorded statement
before the police the witness statesthathesawAstabbingBata
particularpointoftime,butinthewitnessboxhesaysthathesaw
A and C stabbing B at the same point of time; in the statement
beforethepolicetheword”only”canbeimpliedi.ethewitnesssaw
A only stabbing B; (ii) a negative aspect of a positive recital in a
statement: illustration in the recorded statement before the police
thewitnesssaysthatadarkmanstabbedB,butinthewitnessbox
he says that a fair man stabbed B; the earlier statement mustbe
deemed to contain the recital not only that the culprit wasadark
complexionedmanbutalsothathewasnotoffaircomplexion;and
(iii)whenthestatementbeforethepoliceandthatbeforethecourt
cannotstandtogether:illustration:thewitnesssaysintherecorded
statement before the police that A after stabbingBranawaybya
northern lane, but in the court he says that immediately after
stabbing he ran away towards the southern lane; as he could not
haverunawayimmediatelyafterthestabbingi.eatthesamepoint
oftime,towardsthenorthernlaneaswellastowardsthesouthern
lane, if one statement is true, the other must necessarily be false.”

23. Applying the law above, we hold that the 161 statement can be

brought in evidence only through the narrow gate of proven contradiction. The

Apex Court has laid down in uncertain terms as to how demanding and specific

thetestforpermissibleuseis.Noneofthoseconditionswereeveninvokedwhen

PW5wasexamined.Thewitnesshadstatednothingtobringaboutacontradiction

from his previous statement. We are constrained to observe that this is not an

isolatedlapse.Portionsof161statementsfindtheirwayintotheevidenceintrial

aftertrialduetothefailuretoadheretothestatutorymandateonthepartofthe
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prosecutor administering the examination, the defence counsel who ought to

object, and theSessionsJudgepresidingoverthetrialwhooughttodisallowthe

practice. Every prosecutor, every cross-examining counsel, and every Sessions

JudgewoulddowelltointernalisethepropositionslaiddowninTahsildarSingh

(supra),sothatthestatutorydistinctionbetweenawitness’sowntestimonyanda

police officer’s record of what the witness once said to him is not overlooked.

24. PW6 is Bindhu, the teacher attached to the St. Thomas LP School.

According to her, she was the class teacher of the victim. She was informed by

one Vanaja, an Anganwadi teacher, that Ullas used to abuse the child, and she

was asked to enquire. Immediately after Christmas vacation, when the school

reopened,sheapproachedthevictimandaskedheraboutthetruthfulnessofthe

statementgivenbyVanaja.Inresponse,thechildstatedtoherthattheappellant

used to touch on her private parts, and he used to lieonherbody,andthathe

used to lick her private parts. Immediately,sheinformedthemotherofthechild

andlatergaveastatementtothepolice.Incross-examination,shestatedthatshe

did not recall the day on which the police had questioned her. She, however,

statedthatthepolicehadquestionedherontwooccasions.Shestatedthatinher

statementtothepolice,shehadnotmentionedVanaja. Shedeniedthatshewas

colluding with the parents of the child to frame a false case against the appellant.
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25. PW7 isthefatherofthevictimchild.Hestatedthatduring2013-14

period, he, alongwithhisfamily,wasstayingatKombayar.Accordingtohim,the

accusedisthesonofhismother’ssister.Hestatedthat,onedayintheyear2013,

atabout12.00p.m.,theaccusedcametohishouseandtookbothofhischildren

to his house. At about 02:00 p.m., he wenttotheappellant’shousetogetback

his children. He found that his children were looking very scared. According to

him, heisanautorickshawdriverbyprofession.Onthatday,hehadnotgoneto

work as hewassufferingfrompiles.Thereafter,hiswifewascalledtotheschool

by the teacher. Theteacherinformedhiswifeaboutwhathadtranspired.Onthe

same day at 07:00 p.m., the police came home and prepared a mahazar. In

cross-examination,hestatedthathisdaughterdidnotdiscloseanythingaboutthe

incident to him. He stated that onthenextdayhewenttothepolicestation.In

thecaseofthiswitnessalso,asinthecaseofPW5,aportionofhis161statement

wasputtohimandhewasaskedwhetherhehadmadesuchastatementtothe

police. It is clear from the deposition that initially he answered that no such

statementwasgiven.Thenheansweredthatsuchastatementwasinfactgiven.

This is the extract of his evidence.

പിറ്റേ ദിവസംഞാൻപോലീസ്സ്റ്റേഷനിൽപോയി.അന്നേരം
എന്നോട് കാര്യങ്ങൾ ചോദിച്ചു. ഞങ്ങൾ മകളോട് വിവരം
ചോദിച്ചപ്പോൾ, ഉല്ലാസച്ഛയുടെ വീട്ടിൽ കളിയ്ക്കാൻ പോയ
CRL.A No. 235 of 2020 :22: 2026:KER:49663

അന്ന് 11.30 മണിയോടെ മകനെ കളിക്കാനായി പുറത്തു
പറഞ്ഞു വിട്ടിട്ട് വീടിനുള്ളിൽ വച്ച് ഉല്ലാസ് മകളുടെ
മൂത്രമൊഴിക്കുന്ന ഭാഗങ്ങളിൽ പിടിക്കുകയും, നക്കുകയും
ചെയ്തതായും ദേഹത്ത് കയറി കിടന്നപ്പോൾ ശ്വാസം മുട്ടി
നിലവിളിച്ചതായും അപ്പോൾ മകൻ മുറിയിലേക്ക്
കയറിവരുന്നത് കണ്ട് ഉല്ലാസ് എഴുന്നേറ്റു. ഈ വിവരം
വീട്ടിൽ ചെന്ന് പറഞ്ഞാൽ കൊന്നു കളയുമെന്ന് പറഞ്ഞു
ഭീഷണിപ്പെടുത്തിയതായും അതുകൊണ്ടാണ് വിവരം
ഇതുവരെ വീട്ടിൽപറയാതിരുന്നതെന്നുംപറഞ്ഞു.ഇപ്രകാരം
നിങ്ങൾ പോലീസിൽ പറഞ്ഞു. പറഞ്ഞിട്ടുണ്ട്.

The observations made aboveinrelationtoPW5applywithequalforceto

the evidence of PW7. His 161 statement was permitted to find its way into the

record of hisevidencethroughtheidenticalmodeasnoticedinthecaseofPW5.

The statement of the witness to the police was recorded as though it were his

testimony. This was objectionable and ought not have been recorded.

26. PW8istheSeniorCPOattachedtotheNedumkandamPoliceStation.

He was examined to prove that he was present when Ext.P5 Mahazar was

prepared.

27. PW9isthebrotheroftheaccused.HewasexaminedtoproveExt.P7

mahazar prepared at the time of seizure of the clothes of the appellant.

28. PW10 is the Junior Consultant attached to the District Hospital,

Idukki.Shestatedthaton05.06.2014at02:25p.m.,shehadoccasiontoexamine
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the victim, who was 7 years old, in the presence of her mother. As regards the

alleged cause, she was informed that the victim was sexually assaulted by

insertingafingerintovaginaandlyingontopofherseveraltimes,3to4months

back, by a relative (Ullas). The child had complained of a history of pain in the

vagina after the act. On examination of the child, there was no evidence of

generalbodyinjury.However,thedoctornotedthatthehymenwastornandold.

The doctor opined that there is evidence of penetration of the vagina. She also

stated that at the time of examination, she had collected vaginal swabs and

smears.Incross-examination,sheaddedthatthechild,aswellashermother,was

present when the history of the incident was given. She stated that in Ext.P8,

theseaspectsofthematterwerenotmentioned.Shedeniedtheassertionbythe

defence that the vaginal penetration had not taken place. She, however, stated

rupture ofhymencantakeplaceevenforotherreasons.Shestatedthattheage

of the injury cannot be stated. All that can be said is that it is not recent.

29. PW11 is the officer who recorded the FI statement and conducted

theinitialpartoftheinvestigation.Hestatedthattheaccusedwasarrestedat12

noon on 03.01.2014,immediatelyafterregisteringtheFIR.Itwasbroughtoutin

cross-examination that on 03.01.2014 itself, the child was taken to the Taluk

Hospital, Nedumkandom, for medical examination. He admitted that the medical
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examination report was not produced before the court. He stated that in her

previous statement, PW1 did not state to him thattheteacherhadtoldherthat

the child was facing some difficulty or that the appellant had lain on top of the

child and had inserted his organ into the vagina of the child and that the child

becamebreathless.Itwasalsobroughtoutthatthevictimhadnotstatedtohim

when her statement was recorded that the accusedcausedpaintoherwhenhe

tried to inserthispenisintohervagina.Hestatedthatinherpreviousstatement

PW6 had not stated that it was Vanaja who had asked her to enquire with the

childabouttheabusetowhichshewassubjectedto.Thevictimhasnotstatedto

him that she had disclosed the incident to her father.

30. PW12 stated that he took over the investigation of the case from

PW11on07.03.2014.HestatedthatdirectionswereissuedtoCW13torecordthe

statementofthevictim,andonthebasisofthesaidstatementExt.P14reportwas

sent to the jurisdictional Court. In fact, from Ext.P14 report it is discerniblethat

initially the crime was registered for offencesunderSection354,506(1)IPCand

Section9(n)readwithSection10oftheIPC.Asperthesaidreport,afterdeleting

Section 354 of the IPC, Section 376 was added.

31. PW13istheSIofPoliceattachedtotheKattappanaVanithaHelpline.

Shestatedthaton13.05.2014,sherecordedthestatementofthechildasdirected
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byPW12.Shestatedthatinherpreviousstatementthechildhadnotstatedthat

the appellant had lain on top of her and had inserted his organ into theprivate

partofthevictimorthatshefeltbreathlesswhenhedidthat.Itwasbroughtout

that the child had only stated that he did something, and he had lain ontopof

her.

32. PW15 is the Inspector of Police, Nedumkandom. He stated that he

took over the investigation of thecaseon14.05.2014.Wehavealreadynarrated

the sequence of the investigation conducted by the said witness. He statedthat

themedicalexaminationofthevictimwasheldon05.06/2014.Thecustodyofthe

accused was obtained, and based on the disclosure statement furnished by him

recoveryofclotheswornbyhimatthetimeofoccurrencewasseizedasperExt.

P7 mahazar dated 16/6/2014. He then submitted Ext.P20 report to the court

incorporatingSection376(2)(f)&(i),andSection506(i)oftheIPCandSection4

of the PoCSO Act, 2012. It was brought out through him that in the earlier

statement given by the victim, she had notstatedthatanattemptwasmadeby

the accused to insert his finger into the child’s vagina.

33. On the side of the defence, DW1, the learned Magistrate, was

examined. The learned Magistrate stated that the child had stated to him that

PW7hadforcedhertofurnishthestatement.Thechildalsoaddedthatherfather
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had taught her what she had to state before the Magistrate.Itwasbroughtout

thatthechildinher164statementhadnotstatedthatUllashadtakenhertohis

house, that he tried to remove her clothes, that when her brother came in the

appellant stated that he was trying to get back the mobile phone, that the

appellant had kissed her all over, that he licked her private parts, that he

attempted to insert hisorganintoherprivateparts,andthatwhenshecriedher

brothercamerunningorthattheappellanthadthreatenedherfromdisclosingthe

incidenttoanyone.Hestatedthatthechildhadinitiallydisclosedtheincidentto

her father, who took her from the house of Ullas and her father disclosed the

incident to her mother. In cross-examination by the prosecutor, the learned

Magistrate stated that what all the child had stated in her 164 statement was

voluntarily made.

34. In the light of the evidence above, we have reappropriated the

evidence.

35. Beforeproceedingfurther,itisnecessarytoexaminethechronology

of the events, as the sequence in which they unfolded assumes considerable

significance while appreciating the prosecution case. The alleged incident,

accordingtothecharge,isstatedtohaveoccurredon21.12.2013atabout11.30

a.m.TheprosecutioncaseisthatthechilddisclosedtheincidenttoPW6,herclass
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teacher, only on 02.01.2014, when PW6 made inquirieswithher.PW6thereafter

informed PW1, who approached the Police Station and furnished Ext.P1 First

InformationStatementat9.00a.m.on03.01.2014.OnthebasisofExt.P1,Ext.P9

FirstInformationReportwasregisteredfortheoffencespunishableunderSections

354and506(i)oftheIndianPenalCodeandSection9(n)readwithSection10of

the PoCSO Act. A careful reading of Ext.P9 reveals that, as on 03.01.2014, the

allegation against the appellant was confined to the commission of aggravated

sexualassaultbyvirtueofhisrelationshipwiththechild.Therewasabsolutelyno

allegation of penetrative sexual assault or rape at that stage.

36. TheinvestigationwasinitiallyconductedbyPW11,theSubInspector

of Police. His evidence discloses that, on the very same day onwhichthecrime

wasregistered,thevictimchildwastakentotheNedumkandomTalukHospitalfor

medical examination. Surprisingly, however, the prosecution has not produced

before this Court either the medical examinationreportoranycontemporaneous

medical records pertainingtothatexamination.Theomissiontoproducesuchan

important document assumes considerable significance, particularly in a

prosecution under the provisions of the PoCSO Act, where prompt medical

examination constitutes an integral part of the investigative process.
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37. Section 27 of the PoCSO Act reads as under:

Section 27 Medical examination of a child:

( 1) The medical examination of a child in respect of whom any
offence has been committed under this Act, shall,notwithstanding
thataFirstInformationReportorcomplainthasnotbeenregistered
for the offences under this Act, be conducted in accordance with
Section 164A of the Code of Criminal Procedure, 1973 (2 of 1974).

( 2) In case the victim is a girlchild,themedicalexaminationshall
be conducted by a woman doctor.

( 3) The medicalexaminationshallbeconductedinthepresenceof
the parent of the child or any other person in whom the child
reposes trust or confidence.

( 4) Where, incasetheparentofthechildorotherpersonreferred
to in sub-section(3)cannotbepresent,foranyreason,duringthe
medical examination of the child,themedicalexaminationshallbe
conducted in the presence of a woman nominated by theheadof
the medical institution.

38. ItwouldalsobeappositetorefertoRule5oftheRules2012atthis

juncture. The Rule reads as under:

Rule 5

Emergency medical care

(1) Where an officer of the SJPU, or the local police receives
information under Section 19 of theActthatanoffenceunder
the Act has been committed, and is satisfied that the child
against whom an offence has been committed is in need of
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rgent medical care and protection, he shall, as soon as
u
possible, but not later than 24 hours of receiving such
information, arrange to take such child tothenearesthospital
or medical care facility centre for emergency medical care:

rovided that where an offence has been committed under
P
Sections 3, 5, 7or9oftheAct,thevictimshallbereferredto
emergency medical care.

(2) Emergencymedicalcareshallberenderedinsuchamanneras
to protect the privacy of the child, and in thepresenceofthe
parent or guardian or any otherpersoninwhomthechildhas
trust and confidence.

(3) Nomedicalpractitioner,hospitalorothermedicalfacilitycentre
rendering emergencymedicalcaretoachildshalldemandany
legal or magisterial requisition or other documentation as a
pre-requisite to rendering such care.

(4) The registered medical practitioner rendering emergency
medical care shall attend to the needs of the child, including –

(i) treatment for cuts, bruises, and other injuries including
genital injuries, if any;

(ii) treatment for exposure to sexually transmitted diseases
(STDs) including prophylaxis for identified STDs;

(iii) treatmentforexposuretoHumanImmunodeficiencyVirus
(HIV), including prophylaxis for HIV after necessary
consultation with infectious disease experts;

(iv) possible pregnancyandemergencycontraceptivesshould
bediscussedwiththepubertalchildandherparentorany
otherpersoninwhomthechildhastrustandconfidence;
and,

(v) w
herever necessary, a referral orconsultationformental
or psychological health or other counselling should be
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made.

(5) Any forensic evidence collected in the course of rendering
emergency medical care must be collected in accordancewith
Section 27 of the Act.

39. AconjointreadingofSection27ofthePoCSOActandRule5ofthe

PoCSORules,2012leavesnoroomfordoubtthatpromptmedicalexaminationof

a child victim is not a mere procedural formality but a statutory safeguard

intendedtopreservemedicalandforensicevidence,ensureappropriatetreatment,

andprotecttheinterestsofthechild.Inawayitisalsoaguaranteeagainstfalse

accusations being raised against an accused. Compliance with these provisions

assumes even greater significance where allegations of sexual assault are under

investigation. In the case on hand, theprosecutionhasfailedtoadheretothese

mandatorystatutoryrequirements.AlthoughPW11hascategoricallydeposedthat

the victim was taken to the hospital on 03.01.2014 for medical examination

immediately after the registration of the crime, the report relating to such

examinationhasnotbeenproducedbeforethisCourt.Theprosecutionhasoffered

no explanation whatsoever for the non production of this vital document. The

evidence further reveals that PW12 assumed charge of the investigation on

07.03.2014.However,despitetakingovertheinvestigationmorethantwomonths

aftertheregistrationofthecrime,PW12waiteduntil13.05.2014todirectPW13to
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record the statement of the victim. It was onlyonthebasisofthestatementso

recorded that Ext.P14 report dated 13.05.2014 was filedbeforethejurisdictional

court incorporating the offencepunishableunderSection376oftheIndianPenal

Code and Section 4 of the PoCSO Act. What is particularly striking is that even

after the prosecution altered the allegations from aggravated sexual assault to

penetrativesexualassault,noattemptwasmadetosubjectthevictimtomedical

examination, despite theobviousimportanceofsuchevidenceinestablishingthe

newly incorporated offences. The omission assumes considerable importance in

the facts of the present case, especially because theappellanthadalreadybeen

arrested on 03.01.2014 and had remained in judicial custody continuously

thereafter. It wasonlyafterPW15tookovertheinvestigationon14.05.2014that

steps were initiated for the medical examination of the victim. Consequently,

PW10 examined the victim only on 05.06.2014, nearly five months after the

registration of the crime, and after about 20 days after the taking over of the

investigation. Such an unexplained delay in conducting the medicalexamination,

particularly after the introduction of allegations of penetrative sexual assault,

substantiallydiminishestheevidentiaryvalueofthemedicalfindingsandseriously

affects the credibility of the prosecution case.

40. It is true that PW10, inExt.P8,hasopinedthattherewasevidence
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suggestive of penetration of the vagina and that the hymen was torn. Equally

significant is the categorical opinion of the doctor that a torn hymen is not

conclusive proof of penetrative sexual assault and thatsuchatearcanoccurfor

reasonsotherthanpenetration.Therefore,themedicalopinioncontainedinExt.P8

cannotbeviewedinisolation.Itmustnecessarilybeappreciatedinthelightofthe

surrounding circumstances, particularly the extraordinary delay inconductingthe

examinationandthesequenceofeventsleadingtotheincorporationofthegraver

offences. The prosecution was expected to place before the Court the medical

examination report relating to the examination admittedly conducted on

03.01.2014. PW11 has unequivocally spokenaboutsuchanexamination.Yet,for

reasonsbestknowntotheprosecution,thatreporthasbeenwithheld.Hadsucha

report been produced, it would have constituted the most contemporaneous

medical evidence available in the case. Its absence deprives the Court of the

opportunitytocomparethefindingsrecordedimmediatelyafterthecomplaintwith

those contained in Ext.P8, which came to be issued only on 05.06.2014, aftera

considerablelapseoftime.Inourconsideredopinion,theunexplainedwithholding

ofthiscrucialdocumentconstitutesyetanotherseriouslapseintheinvestigation,

the benefit of which must necessarily enure to the appellant.

41. The statement of the victim under Section 164 of the Code of
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Criminal Procedure was recorded by DW1, the learned Magistrate,andhasbeen

marked as Ext.C1. The evidence of DW1 clearly establishes that in Ext.C1 the

victim had not stated that the appellant had subjected hertopenetrativesexual

assaultorthathehadattemptedtoinserthispenisintohervagina.Thisomission

assumesconsiderablesignificancebecausetheallegationofpenetrationformsthe

very foundation of the offences subsequently incorporated under Section 376 of

the Indian Penal Code and Section 4 of thePoCSOAct.Itisequallypertinentto

notethatExt.C1itselfcametoberecordedonlyon29.05.2014,nearlyfivemonths

aftertheallegedoccurrence.UnderSection25ofthePoCSOAct,thestatementof

a child is required to be recorded by the Magistrate asspokenbythechild.The

object of the provision is to preserve the earliest judicial version of the child

withoutembellishmentorexternalinfluence.Theprosecutionhasnotofferedany

explanation whatsoever for this inordinate delay. These circumstances become

highlyrelevantwhileevaluatingthesubsequentimprovementsintroducedintothe

prosecutioncaseandwhiledeterminingwhethertheprosecutionhassucceededin

establishing the offences punishable under Section 376oftheIndianPenalCode

and Section 4 of the PoCSO Act beyond reasonable doubt.

42. The sequence of events emerging from the evidence on record

assumes considerable significance. When the crime was initially registered on
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03.01.2014, the allegation against the appellant wasconfinedtothecommission

of aggravated sexual assault punishable under Section9(n)readwithSection10

ofthePoCSOAct.Subsequently,afterPW12assumedchargeoftheinvestigation,

Ext.P14 report was filed before the jurisdictional court incorporating the offence

punishableunderSection376oftheIndianPenalCodewhiledeletingtheoffence

punishable under Section 354 of the Indian Penal Code. Thereafter, when PW15

took over the investigation, Ext.P20 report dated 04.07.2014 was submitted

incorporating the offences punishable under Sections 376(2)(f), 376(2)(i), and

506(i) oftheIndianPenalCode,togetherwithSection4ofthePoCSOAct.Thus,

the prosecution case progressively evolved from one alleging aggravated sexual

assaulttooneallegingpenetrativesexualassault,resultingintheincorporationof

substantially graver offences. It is therefore incumbent upon the Court to

scrutinize the evidence with greater care to ascertain whether the foundational

facts necessary to sustain the subsequently incorporated charges have been

established beyond reasonable doubt.

44. The evidence of PW11, PW15, and DW1 unmistakably establishes

that, in the earliest version furnished by the victim, therewasnoallegationthat

the appellant had attempted to insert his penis intohervaginaorhadsubjected

her to penetrative sexual assault. This allegation surfaced only several months
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later and constitutes a material improvement over the original prosecution case.

Such a significant omission in the earliest version cannot be treated as

inconsequential. On the contrary, when the allegation subsequently introduced

formstheveryfoundationofthegraveroffencesunderSection376oftheIndian

Penal Code and Section 4 of the PoCSO Act, the omission assumesconsiderable

evidentiary significance and necessarily casts doubt upon the subsequent

improvements. Even assuming that Ext.P8, prepared after the medical

examination conducted on 05.06.2014, contains findings suggestive of

penetration, those findings, bythemselves,cannotestablishtheculpabilityofthe

appellant. It must be borne in mind that the appellant had been arrested on

03.01.2014 itself and had remained continuously in judicial custody thereafter.

Consequently, any medicalfindingsrecordedmorethanfivemonthslatercannot,

inthefactsandcircumstancesofthepresentcase,besafelyattributedtotheacts

allegedly committed by the appellant without cogent and convincing evidence

establishingsuchanexus.Thiscircumstancefurtherweakenstheprosecutioncase

insofar as the allegation of penetrative sexual assault is concerned.

45. Another circumstance which casts serious doubt on the fairness of

the investigation relates to the alleged recovery oftheclothesattheinstanceof

the accused. The evidence on record establishes thattheappellantwasarrested
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on 03.01.2014 and continued in judicial custody until 15.10.2015. Nevertheless,

the alleged recovery under Section 27 of the Indian Evidence Act was effected

only on 16.06.2014. A recovery under Section27oftheIndianEvidenceActcan

ordinarily be effected only when the accused is in police custody. Interpreting

Section167oftheCodeofCriminalProcedure,theHon’bleSupremeCourtinCBI

v.AnupamJ.Kulkarni7 hascategoricallyheldthat,aftertheexpiryoftheinitial

period of fifteen days, any furtherremandduringthecourseofinvestigationcan

only be in judicial custody. Viewed in the light of the above legal position, the

allegedrecoveryeffectedon16.06.2014,whentheappellanthadlongsincebeen

remanded to judicial custody, is clearly inconsistent with the statutory scheme

governing investigation. Although nothing incriminating was ultimately detected

during the chemical examination of the recovered articles, the fact remains that

the investigating agency purported to effect a recovery in a manner not

sanctioned by law.Thiscircumstanceisyetanotherfactorwhichpersuadesusto

hold that the investigation was not conducted with the degree of fairness,

diligence, and procedural compliance expected in a prosecutioninvolvingserious

criminal charges.

46. Having carefully evaluated the entire evidence on record, the

7
[(1992) 3 SCC 141
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sequence of events, the statutory safeguards contained in the PoCSO Act, the

omissionsintheinvestigation,theunexplaineddelayinrecordingthestatementof

the victim and conducting her medical examination, the non production of the

earliest medical examination report, and the material improvements introduced

intotheprosecutioncase,weareoftheconsideredviewthattheprosecutionhas

failed to establish the foundational facts necessary to sustain the allegation of

penetrative sexual assault. The material on record falls short of proving

penetrativesexualassaultorofestablishingtheappellant’sculpabilityforthesaid

offences to the standard required in criminal law. Consequently, the appellant is

entitled to the benefit of doubt in respect of the offences punishable under

Sections 376(2)(f) and 376(2)(i) of the Indian Penal Code and Section 4 of the

PoCSO Act.

47. However,wefindnoreasontodisbelivetheversionofthechildthat

she had been subjected to sexual assault as defined underSection7oftheAct.

Being a near relative the offence punishable we hold that the prosecution has

establishedthattheappellanthascommittedaggravatedsexualassaultuponher,

thereby attracting the provisions of Section9(n)readwithSection10oftheAct,

for which the maximum punishment prescribed is imprisonment for a term of

sevenyears.TheappellantisalsoliableforpunishmentunderSection9(m)ofthe
CRL.A No. 235 of 2020 :38: 2026:KER:49663

Act as the age of the child was under 12 years at the time of occurrence.

Accordingly, the conviction oftheappellantcanbesustainedonlyfortheoffence

punishable under Section9(m)and9(n)readwithSection10ofthePoCSOAct.

No interference is also warranted for thefindingofguiltconvictionandsentence

for the offense punishable under Section 506(i) of IPC.

48. The next question that arises for consideration is whether, despite

the failure of theprosecutiontoestablishtheoffencespunishableunderSections

376(2)(f)and376(2)(i)oftheIndianPenalCodeandSection4ofthePoCSOAct,

the appellant can nevertheless be convicted for a lesser cognate offence

established by the evidenceonrecord.InRafiqAhmadAliasRafiv.StateOf

Uttar Pradesh 8 the Apex Court discussed the principles of ’Cognate offences’

which is discussed as under:

1. Fine distinctions of law, if discerning, should normally be
r ecognised andpermittedtooperateintheirrespectivefields.With
the development of criminal jurisprudence, thelawhasrecognised
the concept of cognate charges besides alternative charges. The
differentiation between the offences from the same family in
contradistinction to the offences fallingindifferentcategorieshave
persuaded the courts to apply the principle of ”cognate offences”
and punish the offender for a less grave offence because the
offence of greater gravity has not beenprovedbeyondreasonable
doubt. This principle istobeappliedkeepinginviewthefactsand

8
2011 SCC 8 300
CRL.A No. 235 of 2020 :39: 2026:KER:49663

c ircumstancesofagivencaseandnotwithstandingthefactthatno
charge for such less grave offence had been framed against the
offender.

xxxx xxxx xxxx xxxx

1. Withthepassageoftimemoreandmoresuchcasescame
3
up for consideration of this Court as well as the High Courts.The
developmentoflawhasnotchangedthebasicprincipleswhichhave
been stated in the judgments aforereferred. Usually an offence of
gravenatureincludesinitselftheessentialsofalesserbutcognate
offence. In other words,thereareclassesofoffenceslikeoffences
against the human body, offences against property and offences
relating to cheating, misappropriation, forgery, etc. In the normal
course of events, the question of grave and less grave offences
wouldariseinrelationtotheoffencesfallinginthesameclassand
normally may not be inter se the classes. It is expected of the
prosecutiontocollectallevidenceinaccordancewithlawtoensure
that the prosecution is able toestablishthechargewithwhichthe
accused is charged, beyond reasonable doubt. It is only in those
cases, keeping inviewthefactsandcircumstancesofagivencase
and if thecourtisoftheviewthatthegraveoffencehasnotbeen
establishedonmeritsorforadefaultoftechnicalnature,itmaystill
proceedtopunishtheaccusedforanoffenceofalessgravenature
and content.

xxxx xxxx xxxx xxxx

3. The Court in Anil case (2006) 13 SCC 36, 2006Supp(9)
3
SCR466,besidesrecordingtheabovefindingsonthemeritsofthe
case noticed the precedents in relation to non-framing of charge.
The Bench referred tovariousjudgmentsofthisCourtinK.Prema
S. Rao v. Yadla Srinivasa Rao (2003) 1 SCC 217, Kammari
Brahmaiah v. Public Prosecutor (1999) 2 SCC 522, Dalbir Singh v.
State Of U.P. (2004) 5 SCC 334, Kamalanantha v. State of T.N
(2005)5SCC194,HarjitSinghv.StateOfPunjab(2006)1SCC463
and recapitulated the principles of law stated in these judgments
CRL.A No. 235 of 2020 :40: 2026:KER:49663

nd stated the following precepts of lawwhichwouldgovernsuch
a
cases: (Anil case (2006) 13 SCC 36)

”54. The propositions of law which canbeculledoutfromthe
aforementioned judgments are:

(i) he appellant should not suffer any prejudice by
T
reason of misjoinder of charges.

(ii) A conviction for lesser offence is permissible.

(iii) It should not result in failure of justice.

(iv) I f there is a substantial compliance, misjoinder of
chargesmaynotbefatalandsuchmisjoindermust
be arising out of mere misjoinder to frame charges.
xxxx xxxx xxxx xxxx

6. Prejudicetoanaccusedorfailureofjustice,thus,hastobe
3
examined with reference to these aspects.Thatalone,probably,is
the method to determine with some element of certainty and
discernment whether there has been actual failure of justice.
”Prejudice”isincapableofbeinginterpretedinitsgenericsenseand
+applied tocriminaljurisprudence.Thepleaofprejudicehastobe
in relation to investigation or trial and not matters falling beyond
their scope. Oncetheaccusedisabletoshowthatthereisserious
prejudicetoeitheroftheseaspectsandthatthesamehasdefeated
the rights available to him under the criminal jurisprudence, then
the accused can seek benefit under the orders of the court.33

7. Right to fair trial, presumption of innocence until
3
pronouncement of guilt and the standards of proof i.e the
prosecution must prove its case beyond reasonable doubt are the
basic and crucial tenets of our criminal jurisprudence. The courts
are required to examine both the contents of the allegation of
prejudice as well as its extent in relation to these aspects of the
case of the accused. It will neither be possible nor appropriate to
statesuchaprinciplewithexactitudeasitwillalwaysdependonthe
CRL.A No. 235 of 2020 :41: 2026:KER:49663

factsandcircumstancesofagivencase.Therefore,thecourthasto
ensurethattheendsofjusticearemetasthataloneisthegoalof
criminal adjudication.

8.Thus,whereverapleaofprejudiceisraisedbytheaccused,it
3
must be examined with reference to the above rights and
safeguards, as it is the violation of these rights alone that may
result in the weakening of the caseoftheprosecutionandbenefit
to the accused in accordance with law.

49. Applying the above principles to the facts of the present case, we

have no hesitation in holding that the offence punishable under Section 9 read

with Section 10 of the PoCSO Act is a lesser cognate offence in relation to the

offence punishable under Section 4 of the Act. As already discussed, the

prosecution has failed to establish beyond reasonable doubt the essential

ingredients constituting the offences punishable under Sections 376(2)(f) and

376(2)(i)oftheIndianPenalCodeandSection4ofthePoCSOAct.However,the

evidence on record clearly establishes the commission of aggravated sexual

assaultattractingtheprovisionsofSections9(m)and9(n)readwithSection10of

the PoCSO Act, as well as the offence punishable under Section 506(i) of the

Indian Penal Code. Convicting the appellant for the said lesser cognate offences

does not occasion any prejudice to him nor does it result in a failure of justice.

The foundational facts constituting those offenceswerespecificallyalleged,were

the subject matter of evidence during the trial, and the appellant hadafulland
CRL.A No. 235 of 2020 :42: 2026:KER:49663

effective opportunity to defend himself against those allegations.

50. In the result,weholdthattheappellantisentitledtothebenefitof

doubtinrespectoftheoffencespunishableunderSections376(2)(f)and376(2)(i)

of the IPC and Section 4 of the PoCSO Act. However, he is found guilty of the

offences punishable under Sections9(m)and9(n)r/w. Section10ofthePoCSO

Act . The finding of the learned Sessions Judge under Section 506(i) of the IPC

and the sentence imposed is confirmed.

51. In that view of the matter, this appeal is partly allowed.

1) The finding of guilt, conviction and sentence passed by the learned

Sessions Judge under Section 376(2)(f) and (i) of theIPC andunder

Section 4 of the PoCSO Act, are set aside.

2) We affirm the finding of guilt and conviction of the appellant under

Section506PartIoftheIPCandthesentenceimposedbythelearned

Sessions Judge.

3) We find the appellant guilty of the offence punishable under Section

9(m)r/w.Section10ofthePoCSOActandheissentencedtoundergo

Rigorous Imprisonment for seven years and to pay a fine of

₹20,000/-(RupeesTwentyThousandonly),andindefaultofpaymentof
CRL.A No. 235 of 2020 :43: 2026:KER:49663

fine, to undergo RI for six months.

4) The appellant is also found guilty of the offence punishable under

Section 9(n)r/w.Section10ofthePoCSOActandheissentencedto

undergo Rigorous Imprisonment for seven years and to pay a fine of

₹20,000/-(RupeesTwentyThousandonly),andindefaultofpaymentof

fine, to undergo RI for six months.

5) Thesubstantivesentenceshallrunconcurrently.Theaccusedshallalso

beentitledtosetoffunderSection428oftheCr.P.C.Ifthefineamount

is realised, the same shall be paid to PW2 as compensation under

Section 357(1)(b) of the Cr.P.C.

Before parting, we note that underSection33(8)oftheProtectionofChildren

fromSexualOffencesAct,2012,theSpecialCourt,inadditiontothepunishment,isto

order compensation to the child for any physical or mental trauma orforimmediate

rehabilitation of such child. Inthecaseonhand,thelearnedSessionsJudgehasnot

chosentodoso.UnderSection357AoftheCr.P.C,theVictimCompensationSchemeis

required to be formulated for the purpose of disbursal of compensation. Under

Section 357A(2)oftheCr.P.C.,theDistrictLegalServicesAuthorityortheStateLegal

ServicesAuthorityisrequiredtodeterminethequantum.Weareoftheviewthatthis

is a fit case where victim compensation is to be granted to the victim child. Inthat
CRL.A No. 235 of 2020 :44: 2026:KER:49663

view of the matter, there will be a direction to the Kerala State Legal Services

Authority to initiate appropriate steps and determine the compensation towhichthe

victimchildisentitledto.Adecisionshallbetaken,atanyrate,withinaperiodoftwo

monthsfromtodayasmandatedunderSection357A(5)oftheCr.PC.,andtheamount

disbursed to the child within a further period of one month.

Sd/-

RAJA VIJAYARAGHAVAN V
JUDGE

d/-
S
K. V. JAYAKUMAR
JUDGE

PS &APM/07/07/26

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Ullas Purashan vs State Of Kerala on 9 July, 2026

Kerala High Court