MUHAMMED vs STATE OF KERALA
- Court
- Kerala High Court
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
MONDAY, THE 12 DAY OF OCTOBER 2026 / 20TH ASWINA, 1948
CRL.A NO. 2143 OF 2024
CRIME NO.819/2022 OF Cherpu Police Station, Thrissur
AGAINST THE JUDGMENT DATED 11.09.2024 IN SC NO.454 OF 2023 OF
FAST TRACK SPECIAL COURT II, THRISSUR
APPELLANT/ACCUSED:
MUHAMMED,
AGED 61 YEARS,
S/O. HAMEED, PUYUVEETIL HOUSE, PATLANGADI DESOM,
VADANAPPILLY VILLAGE, THRISSUR., PIN – 680614.
BY ADVS.
SHRI.BALAMURALI K.P.
SRI.MANU TOM
SHRI.RENIL IQUBAL K.
SMT.HARIPRIYA.M
SHRI.AMAL C. PETER
SHRI.MOHAMMED ASHIQ R.S.
SRI.M.B.SOORI
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN – 682031.
PUBLIC PROSECUTOR SRI M A SHIHAB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.09.2026,
THE COURT ON 12.10.2026 DELIVERED THE FOLLOWING:
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“C.R”
A. BADHARUDEEN, J.
===============================
Crl.Appeal No.2143 of 2024
================================
th
Dated this the 12 day of October, 2026
J U D G M E N T
The verdict in S.C.No.454/2023 on the files of the Special Court
under the Protection of Children from Sexual Offences Act (`POCSO Act'
for short), Thrissur, is under challenge in this appeal, filed at the instance
of the sole accused.
2. Heard the learned counsel for the appellant/accused and
the learned Public Prosecutor. Perused the judgment and evidence
available.
3. Here the prosecution alleges commission of offences
punishable under Sections 354 A(1)(i) and 376(1) of the Indian Penal
Code (`IPC' for short), by the appellant/ accused. The specific allegation is
that at about 12.30 p.m on 08.10.2022 the appellant herein reached the
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house of the victim, an aged lady, and thereafter he had subjected her to
penetrative sexual assault by inserting his finger on her vagina and also on
poking her anus and pressing on her breast.
4. The learned Special Judge recorded the evidence of PWs
1 to PW13 and marked Exts.P1 to P19 on the side of the prosecution. On
the side of the defence, DW1 was examined, apart from putting Exts.D1 to
D4 contradictions during the cross-examination of PWs 3, 5, 6 and 8
respectively. On appreciation of evidence, the learned Special Judge
found that the appellant/accused had committed the offences punishable
under Sections 354 A(1)(i) and 376(1) of IPC and accordingly he was
convicted and sentenced as under:
“ In the result,
1. The accused is sentenced to undergo rigorous imprisonment
for 10 years and to pay a fine of Rs.1,00,000/- u/s.376(1) of IPC. In default
of fine he shall undergo rigorous imprisonment for a period of I year.
2. The accused is also sentenced to undergo rigorous
imprisonment for 3 years and to pay a fine of Rs.25,000/- u/s.354(A)(1)(i)
of IPC . In default of fine he shall undergo rigorous imprisonment for a
period of 2 months.
3. Substantive sentences shall run concurrently.
4. The accused is allowed to set off u/s.428 of Cr.PC., the period
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of detention already undergone in judicial custody from 03.12.2022 to
13.01.2023 against the substantive sentence of imprisonment.
5. If the fine amount is realized, it shall be given to PW2, the
survivor u/ s.357(1)(b) Cr.PC.”
5. The learned counsel for the appellant/accused argued that
the learned Special Judge failed to appreciate the evidence in its proper
perspective. According to him, PW2, the victim, who gave evidence in
support of prosecution, initially had given evidence that the occurrence
was at 07.10.2022. Thereafter, on the defence side, DW1, the son of PW2,
was summoned and examined. Thereafter PW2 was recalled and then
PW2 had given evidence that the date of occurrence was on 08.10.2022
and what she stated during her initial examination as to the date of
occurrence as 07.10.2022 was incorrect. According to the learned counsel
for the appellant, this version of PW2 is a material improvement, and a
witness cannot be permitted to introduce a material improvement in
support of the prosecution case after having tendered evidence earlier on
the same aspect. In support of the said contention, the learned counsel
placed reliance on the following decisions:
(i) [(1981) SCC 752], State of Rajasthan v. Kalki wherein
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it was held that minor discrepancies may be ignored, but material
contradictions affecting the substratum of the prosecution case cannot.
(ii) [(2014) 5 SCC 389], Radhey Shyam v. State of
Rajasthan wherein it was held that material improvements affecting the
core prosecution story render the testimony unreliable.
(iii) [(2009) 11 SCC 334], Mahendra Pratap Singh v. State
of Uttar Pradesh , it was held that improvements introduced during trial on
vital facts substantially weaken the prosecution case.
6. It is also pointed out that the original FIS did not contain
the time at which it was recorded, as is evident from Ext.D4. It is further
pointed out that Ext.P2, produced on her behalf, is an FIS in similar terms,
wherein the time of recording the statement is specifically shown as 21:45
hours. According to him, an unexplained alteration or interpolation of the
earlier version creates serious doubt regarding the genuineness of
prosecution case and in this connection he had given reliance on the
decision reported in [(1972) 3 SCC 393], Thulia Kali v. State of Tamil
Nadu . Similarly, it is pointed out that the suspicious circumstances
surrounding the FIR have seriously impaired its evidentiary value. In this
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connection, the learned counsel had relied on the decision of the Apex
Court reported in [(1980) 4 SCC 425], Marudanal Augusti v. State of
Kerala .
7. Another contention raised by the learned counsel for the
appellant is that the FIR was registered after 19 days’ delay, but the delay
not at all explained and according to him, the delay assumes significance,
when the same is not explained and in this connection, he had relied on the
decision of the Apex Court reported in [(2007) 12 SCC 641], Dilawar
Singh v. State of Delhi . According to him, PW2 had initially given
evidence that the occurrence was on 07.10.2022, but PW2 later deposed
that the occurrence was on 08.10.2022. That apart, during the examination
of PWs 3, 5, 6 and 8, Exts.D1 to D4 contradictions were brought out,
which, according to the learned counsel, cast doubts in the prosecution
case. It is further contended that the above material omissions, amounting
to contradictions, seriously affect the reliability of the prosecution case. In
support of the said contention, reliance is placed on the decision of the
Apex Court reported in [(2011) 2 SCC 715], Subhash v. State of
Haryana . It is pointed out that even though PW13, the Nodal Officer was
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examined to prove call details to show 3 calls made by the accused on
08.10.2022, Section 65 certificate was not produced and therefore, the said
evidence is inadmissible and cannot be looked into. According to him,
PW12, who registered the FIR had investigated this case and filed charge-
sheet and the same if would create prejudice to the accused, the same
would vitiate the prosecution. Further the medical evidence tendered
through PW9, in no way would show any external injury to corroborate the
prosecution case. That apart, DW1, son of PW2 spoke about a possible
enmity between PW2 and the accused in connection with the sale of
property as demanded by him and the same may be the reason for falsely
implicating the accused in this crime. Thus he sought for interference in
the verdict impugned.
8. The learned Public Prosecutor strongly opposed the
contention and read out the relevant evidence of PW2 to contend that, in
fact, at the time of giving FIS and registration of FIR, the date stated by
PW2 as the date of occurrence was 07.10.2022, but subsequently by
additional statement, she had corrected the date as 08.10.2022. However,
when PW2 was examined initially before court, mistakenly, the date was
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spoken in accordance with the earlier statement and thereafter she was
recalled for the purpose of deposing about the correct date of occurrence
and accordingly she deposed the date of occurrence as 08.10.2022.
According to him, there is no delay in lodging the FIR and also the other
contentions raised by the appellant would not sustain. Therefore, the
verdict is liable to be confirmed.
9. Having appraised the rival contentions, the following
points arise for consideration:
(i) Whether the Special Court is justified in holding that
accused committed the offence punishable under Section 354A(1)(i) of the
IPC?
(ii) Whether the Special Court erred in holding that the
accused committed the offence punishable under Section 376(1) of IPC?
(iii) Is it necessary to interfere with the impugned judgment
in any manner?
(iv) The order to be passed?
Point Nos.(i) to (iv)
10. In this case, PW2 is the victim of this crime, who was
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aged 74 years on her date of examination during 2023 as on 11.12.2023,
that is to say, during October, 2022, she was aged 73 years. She had given
evidence supporting the prosecution and lodging of Ext.P2 FIS alleging
sexual molestation at the hands of the accused. According to her, she
along with her daughter in law and 2 children had been residing in the
house and on 07.10.2022, the daughter in law and the children had gone to
the daughter in law's house at Chanangad. During this time, her son, who
was abroad, telephoned her and told her to contact Muhammed (the
accused) and tell him about her difficulties and sorrows. Accordingly, his
son had given her the phone number of the accused and she called him.
Soon the accused agreed to reach her house and after some time he had
reached the house. Then they talked for a while sitting at the hall. Then
the accused informed that there were `moorthis’ (idols) and other evil
spirit on her body and he would vanish them. Then he caught hold of her
breast. Then he asked about whether she had itching on her breast or
vagina and the same were signs of the said discomfort. Then he agreed to
cure the same and caught hold of her breast when she asked whether this
was the treatment, the accused stated that, in order to get out of the
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`moorthis’ (idols) and evil spirit, this would be the treatment. Then he
asked her to lay on the bed in her room and caught hold of her breast and
also inserted his finger on her vagina and touched on the vagina. Then he
stated that he would drop this in the kitchen and brought her to the kitchen.
When they reached the kitchen he caught hold of her breast, vagina and
anus and put something in the furnace (aduppu). Then he had permitted to
hold his penis and when she found the attitude of the accused to be wrong,
she had sent him out and she had informed the same to the police. During
cross examination she had reiterated that, apart from the occurrence on
07.10.2022, there was no other occurrence at the instance of the accused.
It is true that thereafter by allowing Crl.M.P.No.137/2024 filed by the
prosecution, PW2 was recalled and she had given evidence that, apart from
recording the FIS given by her, the police had recorded her statements 3
times. According to her, initially she had given statement disclosing
`07.10.2022’ as the date of occurrence. But in the subsequent statement
she had stated that 08.10.2022 as the actual date of occurrence after
correcting her version in the FIS. She was subjected to cross examination
regarding the date spoken by her as 08.10.2022, as the actual date of
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occurrence and she had deposed that in the FIS as well as the statement
under Section 164 of the Code of Criminal Procedure (`Cr.P.C’ for short
hereafter) she had mistakenly stated the date of occurrence as 07.10.2022
instead of 08.10.2022.
11. PW3 is the daughter of the victim and, according to her,
the accused reached the house of the victim and committed rape on the
victim by stating that her body contains some evil spirit and in order to
ward off the same, he had done the alleged act of rape on her. PW1 is the
Secretary Chazhur Grama panchayat. He had issued Ext.P1 Ownership
certificate pertaining to the place of occurrence. PW4 is the witness to
Ext.P3 scene mahazar.
12. PW5, a relative of PW2, testified that, the son of the
victim and the accused were friends and they used to go to some mosques
along with the accused and as per the direction of the son of the victim,
she called the accused to her house. On a day when he came to his house
for lunch, he had seen the accused going to the house of the victim at
12.30 pm. PW6 deposed that, during the period of the alleged incident she
was the Advocate for Jagratha Samithy in the Chazhur Grama Panchayath
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and the victim informed her that on 07.10.2022, at her house the accused
caught hold on her breast and penetrated his finger into her vagina and
made the victim to touch on the penis of the accused and she informed the
said matter to police.
13. PW7, the Village officer, who prepared Ext.P4 sketch,
pertaining to the place of occurrence, had given evidence supporting the
same.
14. PW8 had recorded the FI statement of the victim and she
had taken the victim for medical examination. PW9 conducted the medical
examination of the victim and issued Ext.P5 certificate. PW10 is a witness
to Ext.P6 seizure mahazar and, according to her, the dress used by the
accused at the time of the alleged incident was seized by the investigating
officer. PW11 is another daughter of the victim and, according to her also,
the accused committed rape on the victim by stating that her body
contained some evil spirit. According to her, she is a witness to Ext.P7
mahazar, by which, the dress worn by the victim at the time of the alleged
incident was seized by the investigating officer in this case.
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15. The Investigating Officer got examined as PW12. It was
he, who registered Ext.P8 FIR on the strength of Ext.P2 FIS of the victim.
After inspecting the place of occurrence, he had prepared Ext.P3 scene
mahazar. The victim was sent for medical examination and her statement
u/s.164 Cr.PC was recorded. The dress worn by the victim at the time of
the alleged incident was seized as per Ext.P7 seizure mahazar and it was
produced before the court as per Ext.P9 property list. The accused was
arrested as per Ext.P10. Exts.P11 and Ext.P12 were the inspection memo
and intimation memo. He identified the accused before the court. The
potency examination of the accused was conducted and report was
collected, which was marked as Ext.P17. Ext.P13 is the address report of
the accused. During investigation, he had obtained the sketch and
ownership certificate pertaining to the place of occurrence. The dress used
by the accused at the time of the alleged occurrence was seized by him as
per Ext.P6 seizure mahazar and it was produced before the court as per
Ext.P14 property list. He had prepared Ext.P15 forwarding note, for
sending the material objects for chemical analysis. He had filed Ext.P16
correction report for correcting the date of the occurrence. He collected the
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CDR of the mobile phone of the accused and the victim to prove the phone
contact between the accused and the victim. Ext.P17 is the potency
certificate of the accused and Ext.P18 is the chemical analysis report in
this case. After completing the investigation, he had filed charge sheet
before the court.
16. The Nodal officer, Vodafone Idea Ltd., examined as
PW13. Ext.P19, call details of mobile phone number 9539753958 with
certificate under Section 65B of the Evidence Act were tendered in
evidence through him. According to her, `9539753958’ mobile number is
in the name of the accused and phone number `9048126372’ is in the name
of the victim and it was ported to Reliance Jio on 04.09.2023. As per the CDR,
on 08.10.2022, there were three calls between the said two numbers.
17. Here the prime contention raised by the learned counsel for
the appellant to unsustain the verdict is the conflicting versions given by PW2,
the victim of crime, about the date of occurrence. It is true that when she was
examined before the court at first instance on 11.12.2023, she stated the date of
occurrence as 07.10.2022 and thereafter she corrected the date of occurrence as
08.10.2022 when she was recalled and re-examined, in deviation from her evidence
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earlier recorded. According to the lea
rned counsel for the appellant, this is a
material improvement and a wit ness would not be permitted to introduce a
material improvement in sup port of the prosecution case after having tendered the
evidence earlier on the same aspect. In this regard he had relied on the
decisions State of Rajasthan v. Kalki ( supra ) , Radhey Shyam v. State of
Rajasthan ( supra ) and Mahendra Pratap Singh v. State of Uttar Pradesh
( supra ). Here going through the evidence of PW2, during her examination
in chief, initially on 11.10.2022 she had spoken about the date of
occurrence as 07.10.2022 and when she was recalled, her version was that,
when she had given FIS, she had disclosed the date of occurrence as
07.10.2022 due to her memory loss and she had given statement on
18.10.2022 about the date of occurrence as 08.10.2022.
18. It is true that when the victim of a sexual assault is not even
able to say about the date of occurrence specifically, and she changes the same
in deviation to her previous statement or additional statement given to the
police, at the time of evidence, the same is a material omission to disbelieve the
prosecution case, as argued by the learned counsel for the appellant. But the
situation is quite different herein. That is to say, here at the time of lodging the
FIS, by mistake or by memory loss or otherwise, the date of occurrence is
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wrongly mentioned as `07.10.2022’ and the same when stood corrected in the
subsequent additional statement given on the next day. In the said
circumstances, it could not be held as a material omission in the evidence of
PW2. It is true that in such situation, PW2 ought to have stated
08.10.2022 as the date of occurrence during her examination initially. In
fact, improper prosecution and failure of the Public Prosecutor in getting
her version as to the date of occurrence as 08.10.2022 is to be noted. But
failure on the part of the Public Prosecutor would not stand in the way of
disbelieving the version of PW2, which is supported by three calls in
between the accused and PW2 on the date of occurrence, viz. 08.10.2022,
as could be seen from the evidence of PW13 and Ext.P19. In such view of
the matter, the material omission in this regard, pointed out by the learned
counsel for the appellant, could not be found. Similarly, it is contended by
the learned counsel for the appellant that there is delay in lodging the FIR
and the same failed to be explained. Going through Ext.P2 FIS, it could be
gathered that PW2 had given explanation for the short delay of 19 days in
lodging the FIR, stating that the delay was occasioned as she decided to
give the statement only after having discussion with his son, who was
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abroad and the daughters. During chief examination also, PW2 deposed
this aspect to justify the delay of 19 days in lodging the FIR. Since the
delay in lodging the FIR inasmuch as sexual molestation of an aged lady is
concerned, the explanation offered is sufficient and even otherwise in case
of sexual molestation, a short delay shall not be the reason to disbelieve
the case of prosecution and throughout the evidence of the prosecution.
19. Sexual molestation spoken by PW2, the victim, an aged
lady of 74 years, is confined to catch of her breast and also insertion of his
finger on her vagina and touching on her vagina apart from pressing on her
breast, vagina and anus. Thus the evidence of PW2 would show the
ingredients for the offences punishable under Sections 354A(1)(i) and 376
of IPC.
20 . PW9, the doctor who had examined the victim, at 12.20
p.m on 28.10.2022, i.e, 20 days after the occurrence, did not notice any
external injury though it was noted that hymen was absent. Accordingly,
the doctor affirmed that “since the incident took place 20 days back, if at
all any injury was occurred due to the assault, it would have healed by the
time of examination” and she had supported Ext.P5 medical certificate
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issued by her. Thus the contention raised by the learned counsel for the
appellant that no external injury was noted by the doctor when PW2 was
examined by her, would indicate that the statement of PW2, about sexual
molestation spoken by her is false, also could not be countenanced. In this
case, 3 phone calls between the accused and PW2 from 9539753958, the
number of the accused, to the number of PW2 viz., 9048126372, could be
seen from Ext.P19 call details were tendered in evidence through PW13.
According to the learned counsel for the appellant, since no certificate
under Section 65B of the Evidence Act was tendered in evidence, the
evidence of PW13 and Ext.P19 could not be acted upon. But on perusal of
Ext.P19 and the evidence of PW13, it could be seen that Ext.P19 includes
the certificate under Section 65 of the Evidence Act as well. Therefore,
this contention also must fail. Coming to the Exts.D1 to D4 contradictions
elicited during cross examination of PWs 3, 5, 6 and 8, the same are not
material contradictions to disbelieve the evidence given by PW2, the
victim of crime. Thus Exts.D1 to D4 contradictions have no serious
consequences. Thus, it is held that none of the contentions raised by the
learned counsel for the appellant is appreciable.
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21. On scrutiny of the evidence in toto , it could be seen that,
the accused herein, on the premise of healing some infirmities of PW2, had
reached her residence, who also had familiarity with her as he had visited
the house of PW2, three times before the occurrence also. After reaching
the house of PW2 on 08.10.2022, the accused subjected her to rape and
sexual molestation by outraging her modesty. It is true that DW1, the son
of the victim, who was examined on the side of the accused to show that
the mother opposed DW1 in the matter of sale of property, who was
entrusted with the sale of property and when the property was sold and
DW1 shifted his residence and attempted to purchase the property in
Vadanappilly and the accused helped him to do so. Thus PW2 had
animosity towards the accused as per his understanding. In fact, the
evidence of DW1 in no way would suggest that the sexual molestation
stated by PW2 was denied by DW1 though he had spoken about some
dispute between PW2 and the accused and also about the dispute between
himself, siblings and the mother. In fact, the evidence of DW1, who
admittedly was inimical with PW2 could not be appreciated for the
purpose of disbelieving the version of PW2, a victim of sexual molestation
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and the same is a fact fully known to PW2 alone. Thus this Court is of the
view that the learned Special Judge is right in holding that the accused
committed the offences punishable under Sections 354 A(1)(i) and 376(1)
of IPC. Therefore, the conviction entered into by the learned Special
Judge would not require any interference.
22. Coming to the sentence, going through the sentence
imposed on par with the nature and seriousness of the offences committed
by the appellant/accused, no interference in the sentence is found
justifiable. Therefore, the sentence also is liable to be confirmed.
23. In the result, this Appeal fails and is accordingly
dismissed. The conviction and sentence imposed by the Special Court are
confirmed. As a sequel thereof, the order suspending sentence and
granting bail to the accused stands cancelled and the bail bond also stands
cancelled.
24. The accused is directed to surrender before the Special
Court to undergo the sentence forthwith, failing which the Special Court
shall execute the sentence forthwith.
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Registry is directed to forward a copy of this judgment to the
Special Court for compliance and further steps.
Sd/-
A. BADHARUDEEN, JUDGE
rtr/