JAYAPRAKASH vs STATE OF KERALA

CNR : KLHC010257962026

2026:KER:84708
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
WEDNESDAY, THE 4 DAY OF NOVEMBER 2026 / 13TH KARTHIKA, 1948
CRL.A NO. 412 OF 2026
AGAINST THE JUDGMENT DATED 31.12.2024 IN SC NO.363 OF 2022 OF
FAST TRACK SPECIAL COURT, KOTTARAKKARA
APPELLANT/ACCUSED:
JAYAPRAKASH
AGED 53 YEARS
S/O.VISWAMBHARAN, JOSHI BHAVAN, SOORYAKULAM, CHITHARA,
VALAVUPACHA,KOLLAM, PIN - 691559
BY ADV.SHRI.SREERAJ M.D.
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM, PIN - 682031
BY SR.PUBLIC PROSECUTOR SRI.SAJEEV P K
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.10.2026,
THE COURT ON 04.11.2026 DELIVERED THE FOLLOWING:

CRL.A.NO.412 OF 2026 2
CR
JUDGMENT
th
Dated this the 04 day of November, 2026
This appeal is at the instance of the sole accused in
S.C.No.363/2022 on the files of the Fast Track Special Court,
Kottarakkara, challenging the conviction and sentence imposed
against him in the above case dated 31.12.2024.
2. Heard the learned counsel for the appellant/accused
and the learned Public Prosecutor. Perused the judgment under
challenge along with the records of the Special Court.
3. Here, the prosecution alleges commission of offences
punishable under Sections 458, 324, 354, 342, 511 and 376 of the
Indian Penal Code (for short, 'the IPC' hereinafter) by the
appellant/accused.
4. The specific allegation is that at 2 o’clock on
10.09.2020, the appellant/accused with criminal intention,
trespassed upon the residence of the victim, while she was

CRL.A.NO.412 OF 2026 3
sleeping, and attempted to commit rape on her.
5. The learned Special Judge recorded evidence. PW1 to
PW14 were examined, Exts.P1 to P14 and MO1 were marked on
the side of the prosecution. The contradictions were marked as
Exts.D1 and D2 on the side of the defence.
6. After appreciation of evidence, learned Special Judge
found that the appellant/accused had committed offences
punishable under Sections 458, 354, 324 and 376 r/w 511 of the
IPC while acquitting for the offence punishable under Section 342
of the IPC. Accordingly, he has been convicted and sentenced as
under:
“The accused is thus sentenced to the following:-
(1) Simple imprisonment for five years and fine of
₹10,000/- (Rupees Ten thousand only) in default to
further simple imprisonment of ten (10) months under
section 458 of IPC.
(2) Simple imprisonment for two years and fine of
₹5,000/- (Rupees Five thousand only) in default for
further simple imprisonment of four (4) months under

CRL.A.NO.412 OF 2026 4
section 354 of IPC;
(3) Simple imprisonment of one year under section 324
of IPC;
(4) Rigorous imprisonment of seven years and fine of
₹15,000/- (Rupees Fifteen thousand only) in default to
further simple imprisonment of one year under section
511 of 376 of IPC.
(5) Fine amount, if realized, shall be paid to PW1 as
compensation under Section 357(1)(b) Cr.P.C.
(6) Sentence of imprisonment shall run concurrently.
(7) Set off allowed under section 428 Cr.P.C. from
10.09.2020 to 01.12.2020 and from 11.04.2024 to till
date (347 days).
(8) MO1 shall be destroyed as per rules after appeal
period or disposal of appeal which ever is later.
(9) No recommendation is made under section 357A of
Cr.P.C.”
7. Multifaceted contentions have been raised by the
learned counsel for the appellant/accused to contend that, going
by the evidence of PW1, the same would not disclose the
ingredients necessary to constitute the offence under Section 376

CRL.A.NO.412 OF 2026 5
r/w 511 of the IPC. It is further submitted that the evidence of the
victim, who was examined as PW1, is not believable, to find any of
the offences alleged to be committed, by the appellant It is
submitted further that if at all any offence to be found from
evidence, the same is an offence punishable under Section 354 of
the IPC. Accordingly, the learned counsel for the
appellant/accused pressed for interference in the verdict impugned to
set aside the same or to modify the same.
8. Whereas, the learned Public Prosecutor strongly resisted
the contentions and submitted that, going by the evidence of PW1, the
necessary ingredients to constitute all the offences found to have been
committed by the appellant/accused by the learned Special Judge
could be found. Accordingly, he submitted that no interference in the
verdict under challenge is warranted in the facts of the case. It is
pointed out that in the decision in Chandran v. State of Kerala

reported in [2025 KHC OnLine 729] , this Court while considering
ingredients for the offence under Section 376 r/w 511 of the IPC
held
in paragraph Nos.30 and 34 to justify his

CRL.A.NO.412 OF 2026 6
contentions, which reads as under:
“30. In Tarkeshwar Sahu v. State of Bihar
reported in [2006 KHC 1354 : (2006) 8 SCC 560],
the Hon'ble Supreme Court held that where the
accused is charged with a major offence and the
said charge is not proved, accused can be
convicted of the minor offence. It was a case
wherein the appeal was filed challenging the
conviction and sentence for the offence under
Section 511 of 376 IPC. The Apex Court held that
the offence proved against the accused falls within
the four corners of 366 and 354 IPC and
accordingly by invoking Section 222 CrPC the
accused therein can be convicted for the offence
under Section 366 and 354 IPC, though he was
found not guilty under Section 511 of 376 IPC.
34. In the case in hand, the prosecution has
succeeded in establishing all the ingredients of the
offence under Section 354 IPC against the accused.
The offence committed by the accused squarely
covers all the ingredients of Section 354 IPC.
Therefore, the Trial Court and the Appellate Court

CRL.A.NO.412 OF 2026 7
were right in convicting the accused for the offence
under Section 354 IPC and this Court finds no
reason to interfere with the said concurrent finding
of conviction.”
9. Now, the following points arise for determination:
(i) Whether the Special Court is right in
holding that the appellant/accused committed offence
punishable under Section 458 of the IPC?
(ii) Whether the Special Court is justified in
holding that the appellant/accused committed offence
punishable under Section 354 of the IPC?
(iii) Whether the Special Court is right in
holding that that the appellant/accused committed
offence punishable under Section 324 of the IPC?
(iv) Whether the Special Court is justified in

CRL.A.NO.412 OF 2026 8
holding that the appellant/accused committed
offence punishable under Section 376 r/w 511 of
the IPC?
(v) Whether the verdict would require
interference?
(vi) The order to be passed?
Point Nos.(i) to (vi)
10. In the instant case, the evidence regarding the overt
acts including sexual assault would come from the testimony of
the victim, who was examined as PW1. According to her, while she
was sleeping at her residence at 2.00 a.m. on 10.09.2020, she felt
that somebody was lying on her body. She thought that it was her
son, who was also laid along with her. When the accused caught
hold of her face, she understood that it was not her son. Soon, she
cried aloud and then the accused bit her on the cheek, causing
injuries. Then, her younger son woke up and tried to switch on
the light, but the accused caught hold of his hand and prevented

CRL.A.NO.412 OF 2026 9
him from getting up, making him lay down there itself. Thereafter,
her elder son woke up on hearing the cry and switched on the
light, whereupon the accused got up and ran away. According to
PW1, the accused entered her house after breaking open the
kitchen door with the intention of sexually assaulting her. Due to
the said incident, she suffered humiliation, mental agony and
physical pain. She had identified Ext.P1 FIS and also Ext.P2 Body
note prepared as that of her. During cross-examination, she
reiterated that the door of the kitchen was demolished. According
to her, the accused went out through the said door, and she had
witnessed the same. However, she had not seen the accused
entering the house. PW1 further stated that the accused was in a
drunken situation. During cross-examination, PW1 deposed that
she had gone to consult the Doctor on the same night and that she
had disclosed the name of the accused while giving her statement
before the Doctor. When it was suggested that the name of the
accused did not find a place in the statement

CRL.A.NO.412 OF 2026 10
recorded by the Doctor, she asserted that she had disclosed the
name of the accused.
11. PW2, neighbor and close relative of PW1, supported the
evidence of PW1. According to PW2, PW1 is the daughter of his
brother and she was a resident nearby his residence. On a day at
2.00 a.m., he heard a cry and when he reached the house of PW1,
he had found that the back door of the house of PW1 was broken.
Later, he along with Shafeek and Shanavas restrained the accused
and entrusted him to the police.
12. Supporting the evidence of PW1, PW3, who is the son
of PW1 also given evidence. PW3 deposed that he slept in another
room, where as, his mother slept in a separate room, on the date
of occurrence. He deposed that, on hearing his mother's screams,
turned on the light and saw the accused in front of her. According
he
to him, he found bite marks on his mother's cheek. He had seen the
accused moving through a property thickly planted with rubber trees
and reaching the spot. He stated that the accused was apprehended
by

CRL.A.NO.412 OF 2026 11
the people of the locality. During cross-examination, he explained
that his mother and younger brother were sleeping in the same
room and that he had switch on the light, which provided light in
the whole house. He further explained that the accused ran in
front of him towards the kitchen to exit the house.
13. Ext.P3 scene mahazar was tendered in evidence
through PW4. According to him, he had witnessed the seizure of
the fallen pieces of the kitchen door of the house of PW1. He
admitted that he had only hearsay knowledge regarding the
incident. PW13, the Grama Panchayat Secretary, who issued
Ext.P13 ownership certificate showing that house No.356 in Ward
No.VIII stood in the name of Naseema Beevi, supprted this aspect.
14. The Police Officer who recorded Ext.P1 FIS and
prepared Ext.P2 body note on noticing the bite mark on PW1 got
examined as PW8 and he supported this aspect.
15. The Investigating Officer who registered Ext.P7,

CRL.A.NO.412 OF 2026 12
prepared Ext.P3 scene mahazar and effected the arrest of the
accused as per Exts.P8, P9 and P10 arrest memo, inspection
memo and custody memo, respectively, was examined as PW10.
He testified that he had made arrangements for recording the
statement of PW1 under Section 164 of the Code of Criminal
Procedure and for conducting her medical examination. He also
reported the address of the accused as per Ext.P11. He affirmed
that he had effected the seizure of a part of the door of the work
area of the house. PW11, the Investigating Officer who conducted
part of the investigation, PW12, the Police Officer who registered
Ext.P12 FIR and PW9, the Investigating Officer who verified the
documents and submitted the final report also given evidence
supporting the prosecution case.
16. In the instant case, the victim identified the accused,
who was known to her for several years, who was her neighbour.
PW3, the son of PW1, deposed that he had witnessed the accused
running away in his presence and also identified the accused as his

CRL.A.NO.412 OF 2026 13
neighbour.
17. Here, the crucial question to be considered herein is
whether the learned Special Judge was right in finding the
commission of the above offences.
18. Coming to the ingredients for the offence punishable
under Section 511 of the IPC, Section 511 is required to be
extracted. The same reads under:
“ [s 511] Punishment for attempting to commit
offences punishable with imprisonment for life
or other imprisonment . — Whoever attempts to
commit an offence punishable by this Code with
imprisonment for life or imprisonment, or to cause
such an offence to be committed, and in such attempt
does any act towards the commission of the offence,
shall, where no express provision is made by this Code
for the punishment of such attempt, be punished with
imprisonment of any description provided for the
offence, for a term which may extend to one-half of the
imprisonment for life or, as the case may be, one-half of
the longest term of imprisonment provided for that
offence, or with such fine as is provided for the offence,

CRL.A.NO.412 OF 2026 14
or with both.”
19. The gist of offence under section 511 is attempt to
commit an offence falling under certain categories. This section
applies where no specific provision for attempting to commit an
offence has been provided in the code itself. Attempt begins where
preparation ends. Having intended to commit the offence, the
accused must have done an act towards its commission having
made preparations. Such an act need not be the penultimate act
towards the commission of that offence, but an act done during the
course of committing that offence. Attempt to commit an offence,
therefore, can be said to begin where the preparations are
complete and the culprit commences to do something with the
intention of committing the offence and which is a step towards
the commission of the offence. Attempt to commit a crime and the
abetment of the commission of that crime belong to the category of
incomplete crimes or inchoate crimes injurious rather in tendency
than in fact. These are also classified as crimes in the interests of

CRL.A.NO.412 OF 2026 15
social security and well-being. In civil law the attempted doing of
an act which when completed is actionable, is not actionable if not
completed. On the other hand, the attempted commission of an
offence is taken serious note of by the Criminal Law and attempts
are also punished with great severity.
Before completion of crime, human mind has to pass four steps as
under :-
(1) Intention to commit;
(2) Preparation to commit it;
(3) Attempt to commit it; and
(4) If the attempt is successful, then crime is complete.
Section 511 of the Indian Penal Code, 1860, is a general provision
dealing with the attempts to commit offences and not made
punishable by other specific section. It makes punishable all
attempts to commit offences punishable with imprisonment and
not only those punishable for life or death.

CRL.A.NO.412 OF 2026 16
20. When tracing the ingredients to commit an offence
under Section 511 of the IPC, there is first intention to commit it;
secondly, preparation to commit it; thirdly, attempt to commit it.
If the third stage that is attempt is successful, then the crime is
complete. If the attempt fails, the crime is not complete but the
law punishes the person attempting the act. An "attempt" is made
punishable, because every attempt, although it fails of success,
must create alarm, which, of itself, is an injury, and the moral
guilt of the offender is the same as if he had succeeded.
21. Thus, a person commits the offence of "attempt to
commit a particular offence" when (i) he intends to commit that
particular offence; and (ii) he, having made preparations and with
the intention to commit the offence, does an act towards its
commission; such an act need not be the penultimate act towards
the commission of that offence, but must be an act during the
course of committing that offence, section 511 of the Indian Penal

CRL.A.NO.412 OF 2026 17
Code, 1860, is attracted. An attempt to commit an offence is an
act, or a series of acts, which leads inevitably to the commission of
the offence, unless something, which the doer of the act neither
foresaw not intended, happens to prevent this. An attempt may be
described to be an act done in part execution of a criminal design,
amounting to more than mere preparation, but falling short of
actual consummation, and, possessing, except for failure to
consummate, all the elements of the substantive crime. In other
words, an attempt consists in it the intent to commit a crime,
falling short of, its actual commission or
consummation/completion. It may consequently be defined as
that which if not prevented would have resulted in the full
consummation of the act attempted. The illustrations given in
section 511 IPC clearly show the legislative intention to make a
difference between the cases of a mere preparation and an
attempt.
22. Thus, an attempt to commit a crime must be

CRL.A.NO.412 OF 2026 18
distinguished from an intention to commit it. When the attempt
to commit a crime becomes successful, the crime is complete.
However, when the attempt fails, the stages of intention to
commit, preparation to commit and attempt to commit the crime
would have been completed. Here is a case where the evidence of
PW1 would show that while she was sleeping at her residence on
10.09.2020, at 2.00 a.m. she felt somebody was lying on her body.
Though initially she thought it was her son who also laid along
with her, when the accused caught hold of her face, she
understood that it was not her son. Soon she cried aloud and in
turn, he bit on her cheek. Then, by the interference of her elder
son, the accused left the place. The fact that the accused entered
the house after breaking open the kitchen door at the odd hour at
2.00 a.m., laid near PW1 and caught hold of her face would, in
fact, would show that he had the intention to commit rape, for which
he made preparations, and while attempting to commit the offence of
rape, he was caught and nabbed. Because of this, the
attempt

CRL.A.NO.412 OF 2026 19
was not successful. In such view of the matter, the contention
raised by the learned counsel for the appellant/accused that the
Special Court went wrong in finding commission of offence
punishable under Section 376 r/w 511 of the IPC, could not be
accepted.
23. Section 458 of the IPC, along with its essential
ingredients and the requirements for proving the offence, is
extracted hereunder:
[s 458] Lurking house-trespass or house-breaking
by night after preparation for hurt, assault, or
wrongful restraint --- Whoever commits lurking house-
trespass by night, or house-breaking by night, having made
preparation for causing hurt to any person, or for
assaulting any person, or for wrongfully restraining any
person, or for putting any person in fear of hurt, or of
assault, or of wrongful restraint, shall be punished with
imprisonment of either description for a term which may
extend to fourteen years, and shall also be liable to fine.

CRL.A.NO.412 OF 2026 20
To prove the charge for the offence under section 458 of
the Indian Penal Code, 1860, the prosecution must prove:-
(i) that the accused committed lurking house -
tresspass by night, or house - breaking by
night;
(ii) that he did as above after having made
preparation for causing hurt, or for
assaulting, or for wrongfully restraining
some person, or for putting someone in fear
of hurt, assault or wrongful restraint.
(a) Essential Ingredients .--- In order to bring home the guilt
under section 458 of the Indian Penal Code, 1860 it will have
to be established that accused made preparation or had
taken such precautions to conceal his house trespass. The
essence of lurking house trespass is the precaution to conceal
the act
(b) Evidence .--- To bring home an offence under section 458 of
the Indian Penal Code, 1860 against the accused, prosecution
must prove (a) that the accused committed lurking house-
trespass as defined in section 443 IPC after sunset or before
sunrise
Or

CRL.A.NO.412 OF 2026 21
that the accused committed house-breaking as defined in
section 445 of the Indian Penal Code, 1860.
(b) that the accused committed the aforesaid offences having
made preparation for causing hurt to any person, or for
assaulting any person, or for wrongfully restraining any
person or for putting any person in fear of hurt or of assault
or for wrongful restraint. There should also be some
evidence of lurking house-trespass, as defined in section 443
of the Indian Penal Code, 1860.
24. Similarly, the ingredients for the offence punishable
under Section 324 of the IPC are as under:
(a) Essential Ingredients.- An offence under this
section has following essential ingredients:
(i) That the accused voluntarily caused hurt to
another person;
(ii) That such a hurt was in exception to cases
provided under section 334;
(iii) That such hurt was caused
(a) by means of any instrument for
shooting, stabbing or cutting, or any
instrument which used as a weapon of
offence is likely to cause death; or
(b) by means of fire or any heated

CRL.A.NO.412 OF 2026 22
substance, or
(c) by means of any poison or any corrosive
substance, or
(d) by means of any explosive substance; or
(e) by means of any substance which is
deleterious to the human body to inhale, to
swallow, or receive into the blood; or
(f) by means of any animal.
(b) Evidence.- To bring home an offence punishable
under section 324, the prosecution is to prove: (a) that
the
accused caused hurt i.e., caused bodily pain, or disease
or infirmity (vide section 319 of the Indian Penal Code,
1860) to another; (b) that it has been caused
voluntarily i.e., with knowledge or intention to cause;
(c) that it has been caused by any instrument for
shooting, or stabbing or cutting, or by any instrument
which qua weapon of offence is likely to cause death, or
by means of fire or any heated substance or by means
of any poison or any corrosive substance or by means
of any explosive substance or by means of any
substance which is deleterious to the human body to
inhale to swallow or to receive into blood or by means
of any animal, and (d) that the offence does not attract

CRL.A.NO.412 OF 2026 23
section 334 IPC.
25. The ingredients for the offence punishable under
Section 354 of the IPC are as under:
Essentials of offence under section 354 are;
(1) That the assault must be on a women,
(2) That the accused must have used criminal force on her, and
(3) That the criminal force must have been used on the
woman intending thereby to outrage her modesty.
Act will amount to outraging of modesty if it is such which could
be perceived as one capable of shocking sense of decency of a
woman. Modesty of a woman is her sex, it is a virtue which
attaches to a female owing to her sex. Modesty is quality of being
modest and in relation to woman, it is womanly propriety of
behaviour, scrupulous chastity of thought, speech and conduct.
26. On scanning the ingredients, as extracted hereinabove,
in the light of the evidence of PW1 and other witnesses,
particularly the specific mention of the time of commission of the
offence as 2.00 a.m. on 10.09.2020, this Court is of the definite

CRL.A.NO.412 OF 2026 24
view that the prosecution succeeded in proving the offences found
to have been committed by the appellant/accused, as found by the
learned Special Judge, and therefore, there is no reason to revisit
the same. In consequence thereof, the conviction stands
confirmed.
27. Coming to the sentence, some leniency can be shown to
modify the sentence imposed for the offence punishable under
Section 376 r/w Section 511 of the IPC by reducing the substantive
sentence of rigorous imprisonment from seven years to five years,
while maintaining the fine of Rs.15,000/- (Rupees Fifteen
Thousand only), and modifying the default sentence to rigorous
imprisonment for a period of two months. In all other respects, the
sentences imposed by the learned Special Judge are confirmed.
The substantive sentences of imprisonment shall run concurrently.
In the result, this appeal is allowed in part, as indicated
above.
The order suspending sentence and granting bail to the

CRL.A.NO.412 OF 2026 25
appellant/accused stands cancelled and the bail bond executed by
the appellant/accused also stands cancelled. The
appellant/accused is directed to surrender before the Special
Court, forthwith to undergo the modified sentence, failing which,
the Special Court is directed to execute the sentence, without fail.
Registry is directed to forward a copy of this judgment to the
Special Court, forthwith, without fail, for information and
compliance.
Sd/-
A. BADHARUDEEN
JUDGE
Bb