SURESH @ KADAKAM vs STATE OF KERALA
- Court
- Kerala High Court
2026:KER:33900
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
MONDAY, THE 18 DAY OF MAY 2026 / 28TH VAISAKHA, 1948
CRL.A NO. 246 OF 2016
CRIME NO.311/2005 OF KADINAMKULAM POLICE STATION, THIRUVANANTHAPURAM
AGAINST THE JUDGMENT OF CONVICTION AND SENTENCE DATED 16.02.2016 IN
S.C. NO.680 OF 2007 OF THE ADDITIONAL SESSIONS JUDGE-I,
THIRUVANANTHAPURAM [SPECIAL COURT FOR THE TRIAL OF OFFENCES AGAINST
CHILDREN]
APPELLANT/ACCUSED:
SURESH @ KADAKAM
AGED 34 YEARS, S/O.CRISTUDAS, ATHIRTHIYIL PURAYIDAM,
MARYANAD, PUTHUKURICHI DESOM, KADANIAMKULAM VILLAGE,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
RESPONDENT/STATE/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031,(CRIME NO.311/2015 OF
KADINAMKULAM POLICE STATION, THIRUVANANTHAPURAM
DISTRICT).
BY ADV PUBLIC PROSECUTOR
SR PP RENJIT GEORGE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.03.2026,
THE COURT ON 18.05.2026 DELIVERED THE FOLLOWING:
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“C.R”
JUDGMENT
th
Dated this the 18 day of May, 2026
The sole accused in S.C. No.680/2007 on the files
of the Special Court for the trial of offences against children
(Additional Sessions Judge-I), Thiruvananthapuram, has filed
this appeal, under Section 374 of the Code of Criminal
Procedure [hereinafter referred as ‘Cr.P.C’ for short] ,
challenging the conviction and sentence imposed by the
Special Judge, against him as per the judgment dated
16.02.2016. The State of Kerala, represented by the Public
Prosecutor is arrayed as the respondent herein.
2. Heard the learned counsel for the appellant and
the learned Public Prosecutor, in detail. Perused the verdict
under challenge and the records of the Special Court.
3. Parties in this appeal shall be referred as
‘accused’ and ‘prosecution’, hereafter.
4. The prosecution alleges commission of offence
punishable under Section 376 of the Indian Penal Code
[hereinafter referred as ‘IPC’ for short], by the accused. The
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allegation of the prosecution is that, the accused committed
rape against the minor victim aged 2 years, who is the
daughter of PW2 on 09.10.2005.
5. After framing charge, the Special Court recorded
evidence and completed trial. During trial, PWs 1 to 8 were
examined, Exts.P1 to P12 and MOs 1 to 4 were marked on
the side of the prosecution. DW1 was examined on the side
of the defence.
6. On appreciation of evidence, the Special Court
found that the accused was guilty for the offence punishable
under Section 376(2)(f) of IPC. Accordingly, the accused was
convicted for the said offence and sentenced as under:
“Resultantly the accused is convicted and
sentenced to undergo rigorous imprisonment for
10 years and to pay a fine of Rs.20,000/-(Rupees
twenty thousand only) in default of which he
shall undergo rigorous imprisonment for a period
of one year more u/s.376(2)(f) of I.P.C.
The accused is granted right of set oft as
per section 428 of Cr.P.C from 13/10/2005 till
9/12/2005 from the substantive sentence of
imprisonment imposed.
The entire fine amount if remitted or
realised shall be given to the victim girl allowing
her mother PW2 to realise the same for and on
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behalf of her as compensation u/s.357(1)(b) of
Cr.P.C.”
7. According to the learned counsel for the accused,
the ingredients to constitute the offence punishable under
Section 376 of IPC not established by the prosecution, in a
case where the victim, who admittedly aged two years,
failed to be examined by the prosecution. It is pointed out
that, the evidence of PW2, the mother of the victim and
PW3, one Stella, who is the friend of PW2, at the courtyard of
her house the alleged occurrence took place, were relied
upon by the Special Court to prove the prosecution case.
According to the learned counsel for the accused, the above
evidence would not by itself is sufficient to find the
commission of the offence punishable under Section 376(2)
(f) of IPC by the accused. It is also pointed out that, even
though the evidence of the doctor is suggestive of the fact
that contusion was present around vaginal orifice of the
victim, the same by itself would not show that there was
penetration of penis into the vagina of the victim by the
accused, to complete the offence under Section 375 of IPC,
where it is reported by the doctor that hymen of the victim
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was intact. Accordingly, the learned counsel for the accused
pressed for interference in the impugned verdict.
8. It is zealously argued by the learned counsel for
the accused that, before amendment of Section 375 of IPC
with effect from 03.02.2013, the legal position as to the
requirements to prove an offence under Section 376 of IPC
is well settled. The learned counsel for the accused has
placed the decision of the Apex Court reported in [(2004)
5 Supreme Court Cases 518 : 2004 Supreme Court
Cases (Cri) 1645 : 2004 SCC OnLine SC 116] Sakshi v.
Union of India and Others , wherein the Apex Court held
in paragraph No.20 as under:
“20. Sections 354, 375 and 377 IPC have come up
for consideration before the superior courts of the
country on innumerable occasions in a period of almost
one-and-a-half century. Only sexual intercourse,
namely, heterosexual intercourse involving penetration
of the vagina by the penis coupled with the explanation
that penetration is sufficient to constitute sexual
intercourse necessary for the offence of rape has been
held to come within the purview of Section 375 IPC. The
wide definition which the petitioner wants to be given
to "rape" as defined in Section 375 IPC so that the same
may become an offence punishable under Section 376
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IPC has neither been considered nor accepted by any
court in India so far. Prosecution of an accused for an
offence under Section 376 IPC on a radically enlarged
meaning of Section 375 IPC as suggested by the
petitioner may violate the guarantee enshrined in
Article 20(1) of the Constitution which says that no
person shall be convicted of any offence except for
violation of a law in force at the time of the commission
of the act charged as an offence, nor be subjected to a
penalty greater than that which might have been
inflicted under the law in force at the time of the
commission of the offence.”
9. He has placed another decision of the Apex Court
reported in [MANU/MP/1606/2012] Nanhelal v. State
of Madhya Pradesh with reference to paragraph Nos.12,
16 and 17 to contend that, mere presence of aberration on
the vagina of the victim by itself would not constitute an
offence under Section 376 of IPC, without signs of complete
penetration.
10. It is pointed out by the learned counsel for the
accused that, in the instant case, either the offence under
Section 376 of IPC or under Section 511 read with 376 of
IPC would not attract and according to him, penetration is
sine qua non for an offence of rape and in order to
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constitute penetration, there must be evidence clear and
cogent to prove that some part of the virile member of the
accused was within the labia of the pudendum of the
woman, no matter how little. In the decision of the Apex
Court reported in [2004 KHC 959 : 2004 (4) SCC 379 :
AIR 2004 SC 1497] Aman Kumar and Another v. State
of Haryana , the Apex Court considered the essentials to
apply Section 511 read with 376 of IPC and held in
paragraph Nos.8 to 14 as under:
“8. The plea relating to applicability of S.376
read with S.511, IPC needs careful consideration. In
every crime, there is first, intention to commit,
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 law punishes the
person attempting the act. S.511 is a general
provision dealing with attempts to commit offences
not made punishable by other specific sections. It
makes punishable all attempts to commit offences
punishable with imprisonment and not only those
punishable with death. An attempt is made
punishable, because every attempt, although it falls
short of success, must create alarm, which by itself is
an injury, and the moral guilt of the offender is the
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same as if he had succeeded. Moral guilt must be
united to injury in order to justify punishment. As the
injury is not as great as if the act had been
committed, only half the punishment is awarded.
9. A culprit first intends to commit the offence,
then makes preparation for committing it and
thereafter attempts to commit the offence. If the
attempt succeeds, he has committed the offence; if it
fails due to reasons beyond his control, he is said to
have attempted to commit the offence. Attempt to
commit an offence can be said to begin when 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. The moment he commences to do an
act with the necessary intention, he commences his
attempt to commit the offence. The word 'attempt' is
not itself defined, and must, therefore, be taken in its
ordinary meaning. This is exactly what the provisions
of S.511 require. An attempt to commit a crime is to
be distinguished from an intention to commit it, and
from preparation made for its commission. Mere
intention to commit an offence, not followed by any
act, cannot constitute an offence. The will is not be
taken for the deed unless there be some external act
which shows that progress has been made in the
direction of it, or towards maturing and effecting it.
Intention is the direction of conduct towards the
object chosen upon considering the motives which
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suggest the choice. Preparation consists in devising or
arranging the means or measures necessary for the
commission of the offence. It differs widely from
attempt which is the direct movement towards the
commission after preparations are made. Preparation
to commit an offence is punishable only when the
preparation is to commit offences under S.122
(waging war against the Government of India) and
S.399 (preparation to commit dacoity). The dividing
line between a mere preparation and an attempt is
sometimes thin and has to be decided on the facts of
each case. There is a greater degree of determination
in attempt as compared with preparation.
10. 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 nor 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. 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 S.511 clearly show the legislative intention to
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make a difference between the cases of a mere
preparation and an attempt.
11. In order to find an accused guilty of an
attempt with intent to commit a rape, Court has to be
satisfied that the accused, when he laid hold of the
prosecutrix, not only desired to gratify his passions
upon her person, but that he intended to do so at all
events, and notwithstanding any resistance on her
part. Indecent assaults are often magnified into
attempts at rape. In order to come to a conclusion
that the conduct of the accused was indicative of a
determination to gratify his passion at all events, and
in spite of all resistance, materials must exist.
Surrounding circumstances many times throw beacon
light on that aspect.
12. Though the prosecutrix's version in Court
was of rape, when it is compared with the one given
during investigation, certain irreconcilable
discrepancies are noticed. The evidence regarding
actual commission of rape is at variance from what
was recorded by police during evidence. The evidence
of PW-11, the father who according to prosecution
made departure from what he allegedly stated during
investigation is to the effect that his wife PW-9 told
her that the prosecutrix was teased by the accused
persons. Merely because he was termed as a hostile
witness his entire evidence does not get effected.
Significantly, the evidence of prosecutrix and the
doctor does not specifically refer to penetration which
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is sine qua non for the offence of rape.
13. There is no material to show that the
accused were determined to have sexual intercourse
in all events. In the aforesaid background, the offence
cannot be said to be an attempt to commit rape to
attract culpability under S.376/511 IPC. But the case
is certainly one of indecent assault upon a woman.
Essential ingredients of the offence punishable under
S.354 IPC are that the person assaulted must be a
woman, and the accused must have used criminal
force on her intending thereby to outrage her
modesty. What constitutes an outrage to female
modesty is nowhere defined. The essence of a
woman's modesty is her sex. The culpable intention of
the accused is the crux of the matter. The reaction of
the woman is very relevant, but its absence is not
always decisive. Modesty in this Section is an
attribute associated with female human beings as a
class. It is a virtue which attaches to a female owing
to her sex. The act of pulling a woman, removing her
dress coupled with a request for sexual intercourse, is
such as would be an outrage to the modesty of a
woman, and knowledge, that modesty is likely to be
outraged, is sufficient to constitute the offence
without any deliberate intention having such outrage
alone for its object. As indicated above, the word
'modesty' is not defined in IPC. The Shorter Oxford
Dictionary (Third Edn.) defines the word 'modesty' in
relation to woman as follows:
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"Decorous in manner and conduct; not forward
or lewd; Shame-fast: Scrupulously chaste."
14. Modesty can be described as the quality of
being modest; and in relation to woman, "womanly
propriety of behaviour; scrupulous chastity of
thought, speech and conduct." It is the reserve or
sense of shame proceeding from instinctive aversion
to impure or coarse suggestions. As observed by
Justice Patterson in Rex v. James Llyod (1876) 7 C&P
817. In order to find the accused guilty of an assault
with intent to commit a rape, court must be satisfied
that the accused, when he laid hold of the
prosecutrix, not only desired to gratify his passions
upon her person but that he intended to do so at all
events, and notwithstanding any resistance on her
part. The point of distinction between an offence of
attempt to commit rape and to commit indecent
assault is that there should be some action on the
part of the accused which would show that he was
just going to have sexual connection with her.”
11. The learned counsel for the accused also cited
decision of the Apex Court reported in [2025 KHC OnLine
6717 : 2025 KHC 6717 : 2025 KLT OnLine 2760]
Neelam Kumari v. State of Himachal Pradesh , wherein
the Apex Court discussed the impact of non-examination of
material witness and how far the same is fatal to the
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prosecution and held in paragraph No.13 as under:
“13. It is to be noted that during examination of
the appellant under S.313 of the Code of Criminal
Procedure, 1973 (For short, the CrPC), she had
negated the extra-judicial confessions and in the said
statement, she had provided an alternative
explanation. She stated that when she found her
child unresponsive in the morning, she started crying.
On hearing her cries, two women came and made
enquiries. One of the women, namely Sita Devi, who
was allegedly a non interested witness to the extra
judicial confession, was never examined by the
prosecution. While the prosecution is not required to
examine every possible witness, it must ensure that
those witnesses essential to substantiate the truth
are produced before the Court. Failure to do so
without adequate explanation, may cast doubt on the
prosecution's case as held by this Court in the case of
Gaurav Maini v. The State of Haryana , (2024
INSC 488) that non examination of a relevant witness
at the trial persuades the Court to draw an adverse
inference against the prosecution.”
12. The learned counsel for the accused also placed
decision of the Apex Court reported in [(2006) 13
Supreme Court Cases 516 : 2006 SCC OnLine SC
1273] Gagan Kanojia and Another v. State of Punjab ,
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wherein in paragraph Nos.16 to 18 the Apex Court
discussed the impact of Sections 6 and 8 of the Evidence
Act and held as under:
“16. PW 5, Pooja, is a tutor. She merely stated
that she had gone to the residence of other student,
Sarita, having been informed that Abhishek and
Heena did not return to their house. Sarita told her
that Heena had called some person wearing helmet,
white shirt, black pants, as "Chacha" and then
Abhishek and Heena sat on the scooter.
17. Sarita having not been examined, we do not
intend to place any reliance on her statement. We
also do not accept the contention of Mr D.P. Singh that
her statement is admissible under Section 8 of the
Evidence Act. Section 8, inter alia, speaks about the
conduct of an accused. The statements made by
Sarita before Pooja vis-à-vis the conduct of the victims
did not form part of the same transaction. Unless any
fact or statement forms part of the same transaction,
it will not be admissible in evidence. Sarita had not
identified the accused. Sarita had not been examined
and, therefore, the hearsay evidence of Pooja could
not have been relied upon being based upon the
purported statement of Sarita. As regards conduct of
the victims vis-à-vis the person about whom she was
informed and whose identity was not known, cannot
be said to be admissible in terms of Section 8 of the
Evidence Act.
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18. The learned trial Judge relied upon Section 6
of the Evidence Act which, in our opinion, has no
application.”
13. Repelling the contentions raised by the learned
counsel for the accused, the learned Public Prosecutor would
submit that, since the minor could not be examined because
of her tender age, the prosecution successfully proved the
offence punishable under Section 376 of IPC through the
evidence of PW2 and PW3, supported by the evidence of
PW6. It is pointed out further that, even otherwise, Section
511 read with 376 of IPC is made out in the facts of the
present case. Therefore, the accused could not wriggle out
from the penal consequences either under Section 376 of IPC
or under Section 511 read with 376 of IPC.
14. The learned Public Prosecutor has placed decision
of the Apex Court reported in [(1997) 7 Supreme Court
Cases 677] Madan Lal v. State of Jammu and
Kashmir , wherein the prosecution case was that the
accused gripped his penis and then rubbed qua the uterus
of the prosecutrix and the finding could be gathered from
the evidence was that the accused had rubbed his penis
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with the vagina of the prosecutrix and tried to penetrate,
but could not succeed in penetrating and ultimately got
himself discharged and the hot semen fell on the thighs of
the prosecutrix. In the said case, the Apex Court held that
the prosecutrix evidence clearly established the fact that
the accused spread the blanket on the floor and forcibly
laid her on the blanket and thereupon the accused forcibly
opened the cord of the salwar of the prosecutrix and kept it
apart and then forcibly rode upon her and on that point of
time caught hold of her head with one hand and closed her
mouth with the other and had kept his penis qua her uterus
and was doing something and then the accused was trying
to penetrate his penis but it did not penetrate and had
gripped his penis with his hand and was rubbing it against
her uterus which he was doing by jumping.
15. In the said case, the Apex Court found the above
overt acts would establish not a mere assault under Section
354 of IPC, but an attempt to commit rape punishable
under Section 511 read with 376 of IPC. In the said
decision, the Apex Court held further that, the statement of
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the mother of the prosecutrix to the effect that the
prosecutrix narrated the entire episode immediately when
she arrived at home can also be held to be corroborative
piece of evidence, which was excluded by the Sessions
Judge erroneously.
16. The learned Public Prosecutor placed another
decision of the Apex Court reported in [(2022) 12
Supreme Court Cases 442 : 2021 SCC OnLine SC 965]
State of Madhya Pradesh v. Mahendra alias Golu ,
wherein the Apex Court discussed distinction between
preparation and attempt to commit an offence of rape in
paragraph Nos. 13 and 14 and relying on the decision of
the Apex Court in Aman Kumar ’s case (supra), it was held
that, penetration is the sine qua non for an offence of rape.
In order to constitute penetration, there must be evidence
clear and cogent to prove that some part of the virile
member of the accused was within the labia of the
pudendum of the woman, no matter how little. Therein also
the Apex Court referred Madan Lal ’s case (supra).
17. The learned Public Prosecutor also placed
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another decision of the Apex Court reported in [(2004) 3
Supreme Court Cases 602 : 2004 Supreme Court
Cases (Cri) 840 : 2004 SCC OnLine SC 299] Koppula
Venkat Rao v. State of A.P. , wherein the Apex Court held
that, ejaculation without penetration would constitute an
attempt to commit rape and not actual rape, in a case
where the accused mounted on top of the victim, but
before actual intercourse there was ejaculation. In the
instant case, reading the evidence available as that of PWs
2 and 3, who did not witness the occurrence, it is pointed
out by the learned Public Prosecutor that, their evidence
would satisfy the requirements of the principle of res
gestea. Accordingly, the learned Public Prosecutor
submitted that the verdict impugned does not require any
interference.
18. In order to rebut the contention raised by the
learned Public Prosecutor regarding the principle of res
gestea, the learned counsel for the accused has placed
decision of the Apex Court reported in [(2016) 16
Supreme Court Cases 701 : (2017) 4 Supreme Court
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Cases (Cri) 524 : 2016 SCC OnLine SC 983] Dhal
Singh Dewangan v. State of Chhattisgarh , wherein in
paragraph No.26, the Apex Court discussed the principles
regarding circumstantial evidence and also the principle of
res gestea. Paragraph Nos.22, 24, 25 and 26 are extracted
hereunder:
“22. In Gentela Vijayavardhan Rao v. State of
A.P., a bus was set on fire which resulted in the death
of 23 passengers. The statements of two seriously
injured fellow passengers were recorded by the
Magistrate as it was thought that they might
succumb to their injuries, in which event their
statements could be pressed into service under
Section 32 of the Evidence Act. Fortunately, they
survived. But while answering the question whether
those statements could now be relied upon under
Section 6, this Court found that there was appreciable
interval between the criminal act and the recording of
their statements by the Magistrate and as such the
statements could not be relied upon with the aid of
Section 6. It was observed: (SCC pp. 246-47, paras
15-16)
"15. The principle of law embodied in Section 6
of the Evidence Act is usually known as the rule of res
gestae recognised in English law. The essence of the
doctrine is that a fact which, though not in issue, is so
connected with the fact in issue "as to form part of
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the same transaction" becomes relevant by itself.
This rule is, roughly speaking, an exception to the
general rule that hearsay evidence is not admissible.
The rationale in making certain statement or fact
admissible under Section 6 of the Evidence Act is on
account of the spontaneity and immediacy of such
statement or fact in relation to the fact in issue. But it
is necessary that such fact or statement must be a
part of the same transaction. In other words, such
statement must have been made contemporaneous
with the acts which constitute the offence or at least
immediately thereafter. But if there was an interval,
however slight it may be, which was sufficient
enough for fabrication then the statement is not part
of res gestae. In R. v. Lillyman a statement made by a
raped woman after the ravishment was held to be not
part of the res gestae on account of some interval of
time lapsing between the act of rape and the making
of the statement. Privy Council while considering the
extent up to which this rule of res gestae can be
allowed as an exemption to the inhibition against
hearsay evidence, has observed in Teper v. R. thus:
(Teper case, All ER p. 447 G-H)
'The rule that in a criminal trial hearsay
evidence is admissible if it forms part of the res
gestae is based on the propositions that the human
utterance is both a fact and a means of
communication and that human action may be so
interwoven with words that the significance of the
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action cannot be understood without the correlative
words and the dissociation of the words from the
action would impede the discovery of the truth. It is
essential that the words sought to be proved by
hearsay should be, if not absolutely
contemporaneous with the action or event, at least
so clearly associated with it that they are part of the
thing being done, and so an item or part of the real
evidence and not merely a reported statement.'
The correct legal position stated above needs
no further elucidation.
16. Here, there was some appreciable interval
between the acts of incendiarism indulged in by the
miscreants and the Judicial Magistrate recording
statements of the victims. That interval, therefore,
blocks the statements from acquiring legitimacy
under Section 6 of the Evidence Act. The High Court
was, therefore, in error in treating Exts. P-71 and P-75
as forming part of res gestae evidence."
xxx xxx xxx
24. The general rule of evidence is that hearsay
evidence is not admissible. However, Section 6 of the
Evidence Act embodies a principle, usually known as
the rule of res gestae in English law, as an exception
to hearsay rule. The rationale behind this section is
the spontaneity and immediacy of the statement in
question which rules out any time for concoction. For
a statement to be admissible under Section 6, it must
be contemporaneous with the acts which constitute
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the offence or at least immediately thereafter. The
key expressions in the section are "... so connected ...
as to form part of the same transaction". The
statements must be almost contemporaneous as
ruled in Krishan Kumar Malik and there must be no
interval between the criminal act and the recording
or making of the statement in question as found in
Gentela Vijayavardhan Rao case. In the latter case, it
was accepted that the words sought to be proved by
hearsay, if not absolutely contemporary with the
action or event, at least should be so clearly
associated with it that they are part of such action or
event. This requirement is apparent from the first
illustration below Section 6 which states "whatever
was said or done.... at the beating, or so shortly
before or after it as to form part of the transaction, is
a relevant fact".
25. Considered in the aforesaid perspective, we
do not find the statements attributed to PW 6 Kejabai
by PWs 3 and 5 to be satisfying the essential
requirements. The house of the appellant, according
to the record, was at a distance of 100 yards from
Gandhi Chowk, where these witnesses are stated to
have found PW 6 Kejabai crying aloud. Both in terms
of distance and time, the elements of spontaneity
and continuity were lost. PW 6 Kejabai has disowned
and denied having made such disclosure. But even
assuming that she did make such disclosure, the
spontaneity and continuity was lost and the
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statements cannot be said to have been made so
shortly after the incident as to form part of the
transaction. In the circumstances, we reject the
evidence sought to be placed in that behalf through
PWs 3 and 5. Even if we were to accept the version of
PWs 1 and 2, the same would also suffer on this
count and will have to be rejected.
26. We are therefore left with certain pieces of
circumstantial evidence and have to see if those
circumstances bring home the case of the
prosecution. The principles how the circumstances be
considered and weighed are well settled and summed
up in Sharad Birdhichand Sarda v. State of
Maharashtra as under: (SCC p. 185, paras 153-54)
"153. A close analysis of this decision would
show that the following conditions must be fulfilled
before a case against an accused can be said to be
fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be fully
established.
It may be noted here that this Court indicated
that the circumstances concerned "must or should"
and not "may be" established. There is not only a
grammatical but a legal distinction between "may be
proved" and "must be or should be proved" as was
held by this Court in Shivaji Sahabrao Bobade v. State
of Maharashtra where the observations were made:
(SCC p. 807, para 19) '19.... Certainly, it is a primary
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principle that the accused must be and not merely
may be guilty before a court can convict and the
mental distance between "may be" and "must be" is
long and divides vague conjectures from sure
conclusions.'
(emphasis in original)
(2) the facts so established should be
consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that the
accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable ground for
the conclusion consistent with the innocence of the
accused and must show that in all human probability
the act must have been done by the accused.'
154. These five golden principles, if we may say
so, constitute the panchsheel of the proof of a case
based on circumstantial evidence."
19. In view of the rival submissions, the points arise for
consideration are:
1. Whether the Special Court is justified in
finding that the accused committed the offence
under Section 376(2)(f) of IPC?
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2. Whether the verdict of the Special Court
would require interference?
3. Order to be passed?
20. Point No.1:- In this case, the evidence of PW3 is
relevant. According to PW3, she was familiar with Mary
Reeja, who was examined as PW2 (the mother of the
victim) and the accused. She deposed that, PW2 is her
friend. According to her, the occurrence was in between
01.00 p.m. to 02.00 p.m. on 09.10.2005, when she along
with PW2 went for washing clothes, the victim aged two
years and her daughter were playing at the courtyard of
her house. Later, when she returned, she found that the
minor victim was sitting on the lap of the accused and
when she asked the minor about her sister, she stated that
she went for purchasing sweets. Further, the accused was
found without wearing shirt and also that the undergarment
of the victim found laying nearby the place the accused
and the victim were sitting. When she found that the sitting
of the victim on the lap of the accused was not fair but
unpleasant, she had sent back the victim to her mother.
Then, she divulged the occurrence to PW2. According to
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her, the accused is a nearby resident of her and she
identified him at the dock. During cross-examination of
PW3, nothing asked to shake the evidence of PW3 as
unbelievable as regards the occurrence spoken by her.
21. Coming to the evidence of PW2, who is the
mother of the minor victim, she stated that the occurrence
was on 09.10.2005. According to her, while she along with
Stella (PW3) and other friends were engaged in washing
clothes, at about 01.30 pm, at the courtyard of the house of
PW3, her daughter along with the daughter of PW3 were
engaged in paying. After sometime, PW3 went to her house
at 01.45 pm and she sent back the minor victim and
thereafter PW3 also reached her house and informed that
the minor victim was found sitting on the lap of the accused
and the victim was found not wearing her undergarment
and when she found unfairness in the mode of sitting, she
had sent back the victim. According to PW2, her daughter
completed two years on 12.10.2005. She deposed further
that, when she enquired about the occurrence to her
daughter, she stated that, while she was at the house of
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Stella aunty (PW3), the accused removed her knicker and
pierced her. PW2 deposed further that, when Stella and her
husband reached her house and asked about the
occurrence, the victim reiterated the same. When the
victim was examined, red stain on her body was found. She
deposed that, since her husband was working abroad, she
was perplexed and was in a dilemma. Later she obtained
permission of her husband and lodged a complaint before
the Police on 12.10.2005. Ext.P2 identified as the complaint
so lodged. She also deposed about medical examination of
her daughter by the doctor in the presence of WPC and she
identified the dress worn by her daughter at the time of the
occurrence. On reading the limited questions asked to her
during her cross-examination, the version of PW2 regarding
the occurrence, as spoken by the victim was not at all
challenged.
22. It is in this context, the evidence of PW6, the
doctor who examined the minor victim assumes
significance. According to PW6, on 12.10.2005, while she
was working as the Assistant Surgeon in Women and
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Children Hospital, Thycaud, at about 01.20 p.m., she had
examined minor victim aged two years. She also deposed
the occurrence stated before her in similar terms as
deposed by PW2 and PW3. According to her, as per Ext.P4
certificate, she could not find any external injuries over the
face or other body parts of the victim. But, contusion was
present around vaginal orifice, though the hymen was
intact. She had taken vaginal smear and swab for chemical
examination. According to her, the opinion based on the
findings, ‘may be as alleged’.
23. At this juncture, it is necessary to address the
ingredients to attract the offence under Section 375 of IPC
prior to amendment of Section 375 of IPC with effect from
03.02.2013 and the same reads as under:
“ 375. Rape. - A man is said to commit "rape"
who, except in the case hereinafter excepted, has
sexual intercourse with a woman under
circumstances falling under any of the six following
descriptions:-
First.- Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent
has been obtained by putting her or any person in
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whom she is interested in fear of death or of hurt.
Fourthly.- With her consent, when the man
knows that he is not her husband, and that her
consent is given because she believes that he is
another man to whom she is or believes herself to
be lawfully married.
Fifthly.- With her consent, when, at the time of
giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him
personally or through another of any stupefying or
unwholesome substance, she is unable to
understand the nature and consequences of that to
which she gives consent.
Sixthly.- With or without her consent, when
she is under sixteen years of age.
Explanation.- Penetration is sufficient to
constitute the sexual intercourse necessary to the
offence of rape.
Exception.- Sexual intercourse by a man with
his own wife, the wife not being under fifteen years
of age, is not rape.”
24. Before conclusion, it is necessary to look into the
findings of the Special Judge in paragraph No.26 of the
verdict impugned. The same is as under:
“26. The medical evidence brought out on
record by the prosecution very precisely proved
that the genitalia of the child is accessed by an
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extraneous object. The prosecution raised an
indictment u/s 376 of IPC against the accused. The
question whether actual entry of the male sexual
organ through vagina of the victim is essential to
constitute rape u/s 375 of Indian Penal Code and in
the absence of penile-vaginal entry will the offence
of rape be made out u/s.375 of IPC is well
discussed and settled by the Hon'ble High Court of
Kerala in Chenthamara v. State of Kerala
(2008 (4) KHC 313) . After elaborate discussion,
there it is held with reference to a plethora of
rulings of the Hon'ble Apex Court that "needless to
say, there is no passage or canal in
vulva/pudendum, labia majora etc., like that of
vagina and hence, during penetration into these
areas, there will not be passing of penis through
these portions, as in the case of vagina. In such
cases of 'penetration', there can only be act of
male organ finding access into / towards vagina,
without there being an actual entry of male sexual
organ through vagina and in such process, the
male organ may get in touch with the external
portions of the female genital organ like labia
majora, etc. According to me, it is such process of
'penile accessing', which the Hon'ble Supreme
Court and this Court described as, 'penetration into
labia majora, pudendum, vulva' etc., in the
decisions cited above. This is the type of
'penetration' which is referred to in the Explanation
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to section 375 IPC.”
25. Insofar as the ingredients to accept a part of
evidence as res gestea, as pointed out by both sides, the
law is well settled. In order to apply rule of res gestea as
an exception to the general rule of hearsay evidence, which
is inadmissible, making certain statement or fact
admissible under Section 6 of the Evidence Act to be on
account of the spontaneity and immediacy of such
statement or fact in relation to the fact in issue. It is
necessary that such fact or statement must be a part of the
same transaction i.e. such statements constitute the
offence or atleast immediately thereafter. But, if there is an
interval however slight it might be, it is sufficient for
fabrication when a statement would not form part of res
gestea.
26. In Dhal Singh Dewangan ’s case (supra), the
Apex Court referred R. v. Lillyman [(1896) 2 QB 167 :
(1895-99) All Rep 586 (CCR)] , wherein it was held that,
a statement made by a raped woman after the ravishment
was held to be not part of the res gestea on account of
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some interval of time lapsing between the act of rape and
the making of the statement.
27. In the instant case, even though it is argued by
the learned counsel for the accused relying on the decision
of the Apex Court in Neelam Kumari ’s case (supra) that
non examination of relevant witness would be fatal to the
prosecution, in the instant case, non-examination of the
victim, who even not completed two years of age as on the
date of occurrence, could not be held as non-examination
of a material witness. Here, the available evidence would
suggest the fact that when PW2 and PW3 were engaged in
washing cloths at about 01.30 p.m. on 09.10.2005, the
daughter of PW3 and the victim were engaged in playing at
the courtyard of the house of PW3. After sometime, when
PW3 went to her house at about 01.45 p.m., she found that
the minor victim was sitting on the lap of the accused and
the victim was seen not wearing her undergarment and
when she found unfairness in the mode of sitting, she sent
back the victim to her mother. Admittedly, the victim
completed two years only on 12.10.2005 i.e. after the
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occurrence. According to PW2, when she enquired about
the occurrence to the victim as informed by PW3, the victim
stated that the accused removed her knicker and pierced
her. The version of PW3 is that she found the undergarment
of the victim lying beneath the place where the victim and
accused were sitting. This aspect was spoken by PW2 and
PW3 without any ambiguity. PW6, the doctor who examined
the victim, categorically given evidence regarding
examination of minor victim and issuance of Ext.P4
certificate. According to her, contusion was present around
vaginal orifice of the victim, though the hymen was intact.
When reading the evidence of PW2 and PW3, supported by
the presence of contusion on the vaginal orifice of the
victim, it could be seen that there was an attempt on the
part of the accused to commit rape on the minor victim.
But, there is no convincing evidence to show penetration to
complete the offence of rape as on the date of occurrence,
which is prior to amendment of Section 375 of IPC with
effect from 03.02.2013. When a person is attempting to do
an act with intention to do so and he would do some overt
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acts and when he could not complete the offence by doing
the remaining overt act or acts, the law would punish such
person for commission of offence of attempting to commit
the said offence for which the punishment is half of the
punishment provided for such offence. Even though from
the evidence discussed, the learned Special Judge found
commission of offence punishable under Section 376 of IPC
by the accused, the evidence available would not suggest
necessary ingredients to constitute an offence under
Section 375 of IPC punishable under Section 376 of IPC
prior to amendment of Section 375 of IPC with effect from
03.02.2013. But the ingredients to prove an attempt to
commit the offence of rape have been established by the
prosecution based on the evidence discussed herein above.
28. In view of the matter, the conviction imposed by
the learned Special Judge finding that the accused
committed offence punishable under Section 376 of IPC
required to be interfered, holding that the offence
committed by the accused is one punishable under Section
511 read with 376 of IPC.
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29. Point Nos.2 and 3:- In the result, this appeal
stands allowed in part. The conviction and sentence
imposed by the Special Court against the accused for the
offence punishable under Section 376 of IPC are set aside
and the accused is convicted for the offence punishable
under Section 511 read with 376 of the IPC. Accordingly,
the accused is sentenced for the offence punishable under
Section 511 read with 376 of the IPC as under:
i. The accused is sentenced to undergo
rigorous imprisonment for a period of five years
and to pay a fine of Rs.50,000/- and in default to
undergo rigorous imprisonment for six months,
for the offence under Section 511 read with 376
of IPC.
ii. T he fine amount if paid or realized,
Rs.30,000/- (Rupees Thirty Thousand only) shall
be released to the victim, as compensation and
the remaining amount shall go to the State
Exchequer.
iii. The period of detention undergone by
the accused in this case will be set off against
the substantive sentence of imprisonment.
30. The order suspending sentence and granting bail
to the accused stands vacated, with direction to the accused
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to appear 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, for information and further
steps.
Sd/-
A. BADHARUDEEN
JUDGE
SK