SHAMSUDHEEN vs STATE OF KERALA

CNR : KLHC010142592011

2026:KER:68562
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
TUESDAY, THE 8 DAY OF SEPTEMBER 2026 / 17TH BHADRA, 1948
CRL.A NO. 372 OF 2011
AGAINST THE JUDGMENT DATED 14.01.2011 IN SC NO.269 OF 2009 OF
ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM
APPELLANT/ACCUSED:
SHAMSUDHEEN
AGED 46 YEARS
S/O.KOYATTI, THARAMEL HOUSE, PULISSERIKUNNU KARA,
CHERUVANNUR, KOZHIKODE.
BY ADV.SRI.S.RAJEEV
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.SAJEEV P.K.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.08.2026,
THE COURT ON 08.09.2026 DELIVERED THE FOLLOWING:

CRL.A.NO.372 OF 2011 2
CR
JUDGMENT
th
Dated this the 08 day of September, 2026
Judgment in S.C.No.269/2009 on the files of the Additional
Sessions Court - II, Ernakulam, is under challenge in this appeal at
the instance of the sole accused in the above case.
2. Heard the learned counsel for the appellant/accused as
well as the learned Public Prosecutor, in detail. Perused the
judgment under challenge along with the records of the Sessions
Court.
3. Here, the prosecution alleges commission of offences
punishable under Sections 363 and 376(f) of the Indian Penal Code
(for short, 'the IPC' hereinafter), by the appellant/accused.
4. The prosecution case is that the appellant/accused had
kidnapped a 12 years aged minor girl from the public road, which is
situated near the Government Girls High School, Tripunithura at
about 11.00 a.m. on 09.01.2007 on his motor bike, bearing

CRL.A.NO.372 OF 2011 3
Reg.No.KL-7 AC/3706 to his house having building No.31/1673
situated in Thammanam. Thereafter, he had subjected the said girl
to sexual intercourse twice at 11.00 a.m. and 2.30 p.m. to satisfy his
sexual lust. On this premise, the prosecution alleges commission of
the aforesaid offences, by the appellant/accused.
5. In this matter, the Sessions Court framed charge for the
said offences and proceeded with trial. During trial, PW1 to PW23
were examined, Exts.P1 to P23 and MO1 to MO8 were marked on the
side of prosecution. No defence evidence was adduced.
6. On appraisal of the evidence, the Sessions Court found
that the accused committed offences punishable under Sections 363
and 376(f) of the IPC and sentenced the appellant/accused as under:
“In the result, the accused is found guilty for the
offences punishable u/ss. 363 and 376(f) of the I.P.C
and thereby he is convicted thereunder. He is
sentenced to undergo rigorous imprisonment for
five years and to pay fine of Rs.10,000/-(Ten
thousand rupees only) in default to undergo simple
imprisonment for three months u/s.363 of the I.P.C

CRL.A.NO.372 OF 2011 4
and to undergo rigorous imprisonment for 10 years
and to pay fine of Rs.15,000/- (Fifteen thousand
rupees only) in default to undergo simple
imprisonment for four months u/s.376(f) of the
I.P.C. Substantive sentences shall run concurrently.
The accused is entitled to get remand period set off,
if any. The victim, the witness PWI is entitled to get
the fine amount as compensation u/s.357(1) of the
Cr.P.C, if the fine amounts are paid by the accused.
authorities of the Valsalya Bhavan is empowered to
collect the compensation amount for and on behalf
of the minor girl, the witness PW1.” 
7. The sum and substance of the argument advanced by the
learned counsel for the appellant/accused is that the prosecution has
failed to establish the age of the victim girl beyond reasonable doubt,
to hold her status as that of a minor aged below 18 years. It
is contended that, though Ext.P23 birth certificate was
marked through PW2 and Ext.P12 School Admission Register was
produced and proved through PW21, the said documents do not
conclusively establish the age of the victim as 12 years on the date of

CRL.A.NO.372 OF 2011 5
the alleged occurrence. Therefore, according to the learned counsel,
the prosecution has failed to prove the age of the victim, as mandated
by law. He also argued that in the said circumstances, the
prosecution failed to prove the offences found to be committed by the
learned Sessions Judge beyond reasonable doubts and the sexual
overtures, if any, to be adjudged as one with consent .
8. T he learned Public Prosecutor has relied upon the
decision of this Court in Joseph @ Sabu v. State of Kerala
reported in [2026 KHC OnLine 331] to contend that the evidence
adduced by the prosecution is sufficient to prove the age of the
victim. In the said decision, this Court held as under:
“When the child and her mother give evidence
before the court, stating the date of birth of the victim,
which would substantially show that the victim is
below 18 years, if the accused does not dispute the
status of the victim as a child below 18 years by
contending that the victim's age at the time of
occurrence is above 18 years by cross-examining them
and thereby, their substantial evidence would remain

CRL.A.NO.372 OF 2011 6
unchallenged, and thus, if the prosecution fails to
prove the same by documentary evidence as discussed,
conviction for the offence under the PoCSO Act is
permissible. But when the oral testimony given by the
victim and the mother has  been challenged during
cross-examination contending that the age of the
victim is above 18 years and the prosecution fails to
prove the age of the victim below 18 years by
admissible documents discussed hereinabove, it is
unsafe to fasten criminal culpability on the accused
under the PoCSO Act, since the prosecution failed to
adduce evidence to prove that the victim was aged
below 18 years during commission of the offences.
Explaining the legal position in the above line, it is
unsafe to hold that in the instant case, the prosecution
failed to prove the age of the victim below 18 years.”
It is also submitted by the learned Public Prosecutor that
the evidence of PW1 regarding the occurrence coupled with the
fact that Ext.P1 FIR was registered immediately on the next day
of the occurrence, the prosecution established commission of
offences under Sections 363 and 376(f) of the IPC beyond reasonable

CRL.A.NO.372 OF 2011 7
doubts and thus, the verdict would not require any interference.
9. Adverting to the rival arguments, the points arise for
consideration are;
(i) Whether the Sessions Court is right in holding
that the accused committed offence punishable under
Section 363 of the IPC? Section 363 of the IPC?
(ii) Whether the Sessions Court is justified in holding
that the accused committed offence punishable under
Section 376(f) of the IPC? 376(f) of the IPC?
(iii) Whether the verdict would require interference?
(iv) The order to be passed?
Point Nos.(i) to (iv)
10. The victim of this case was examined as PW1. At the
outset, she deposed that she was then aged 17 years. The incident in
th
this case occurred while she was studying in the 5 Standard at the
Government Girls High School, Thripunithura. She was then residing
with her foster father and mother. She was their adopted child.

CRL.A.NO.372 OF 2011 8
According to her, she had been residing in the orphanage, Valsalya
Bhavan as of now. Her parents were business people. Her foster
mother conducted a grinding mill and her father conducted an
Ayurvedic shop. She used to come to the school on her father's
scooter. The incident in this case occurred on 09.01.2007. The
accused enticed her and took her away on his motorbike when she
alighted from her father's scooter at about 9.30 a.m. PW1 got
acquaintance with the accused as a shop keeper. PW1 and her
mother used to visit the shop of the accused. The accused took PW1
on his motorbike under the guise of showing her, his residential
building. Both of them entered into the house of the accused in
Thammanam. Nobody was present at the house. The accused forcibly
undressed the victim. Thereafter, he committed rape on her at about
11.00 a.m. Thereafter, both of them watched television. Then, the
accused again had sexual intercourse with her at about 2.30 p.m.
Thereafter, both of them reached the public road situated near the
shop of PW1's father at about 4.30 p.m. PW1 disclosed the factum of

CRL.A.NO.372 OF 2011 9
rape to her mother. Subsequently, PW1's mother complained about
the rape before the police. She had deposed about her medical
examination and recording of her statements.
11. Supporting the version of PW1, PW2, the foster mother of
PW1 deposed that the incident in this case occurred on 09.01.2007.
PW1 was aged only 12 years at that time. She was dropped near the
school by the husband of PW2 on a scooter. The husband of PW2
went to the school to accompany her to the house in the evening.
Then, the teacher and the students disclosed the fact that PW1 had
not attended the class on 09.01.2007. PW1 disclosed the factum of
rape to PW2. PW2 lodged a written complaint before the police. The
said complaint was marked as Ext. P1, through her.
12. T he foster father of PW1 got examined as PW3. He
deposed that he used to drop PW1 at the school on his two-wheeler.
He used to drop her near the back gate of the school. He went to the
school at about 3.30 p.m. to accompany PW1 to his house. Then, he
came to know that PW1 was absent on the date of the incident.

CRL.A.NO.372 OF 2011 10
13. PW4, a relative of PW1, who was present, when PW2
questioned PW1, deposed that PW1 disclosed the factum of rape in
his presence.
14. T he class teacher of PW1 at the Government Girls High
School, Thripunithura, got examined as PW5. She deposed that PW1
was absent from school on 09.01.2007. She disclosed the said fact to
the police. She further deposed that PW3 reached the school after
3.00 p.m. to accompany PW1. She then disclosed the fact that PW1
was absent on that day.
15. PW6, an employee of Fruits Garden, Thripunithura
deposed that the accused was working as a salesman in a shop in the
year 2007. He further deposed that PW2 used to visit the said shop.
PW7, the owner of Fruits Garden, Thripunithura, was examined by
the prosecution to establish the connection of the accused with the
said shop. He deposed that the accused was employed as a salesman
in his shop during the relevant period. PW8, who had acquaintance
with the accused and his family deposed that the accused resided in a

CRL.A.NO.372 OF 2011 11
house owned by PW8 as a tenant along with his family.
16. PW14, the Revenue Officer of Cochin Corporation,
deposed that the Superintendent of the Zonal Office, Vyttila, issued
the ownership certificate relating to the house of the accused, which
was marked as Ext.P6. PW15, the Village Officer of Thripunithura,
who prepared the site plan, which was marked as Ext.P7, supported
the prosecution case. PW16, the Village Officer of Nadama, who
prepared the site plan, which was marked as Ext.P8 also supported
the prosecution case. PW17, the Secretary of Thripunithura
Municipality on 06.02.2007, who had issued the ownership
certificate relating to the fruit shop, which was marked as Ext.P9.
17. PW18, the doctor who examined the victim, deposed that
he had issued Ext.P10 certificate after examination of PW1. PW20
deposed that the fruit shop stood in his name as per the records of
the Municipality.
18. PW21, the Headmistress of the Government Girls High
School, Thripunithura, who produced the extract of the School

CRL.A.NO.372 OF 2011 12
Admission Register before the police, which was marked as Ext.P12,
supported the prosecution case and issuance of Ext.P12.
19. PW22 examined in this case is the Circle Inspector of
Police, Hill Palace Police Station, at the time of the incident in this
case. He deposed that he had conducted the investigation of the
case. He had prepared the scene mahazar, Ext.P4. He had seized the
material objects MO6 to MO8 as per the mahazar, Ext.P5. He had
took the dress of the victim into custody as per the mahazar, Ext. P3.
He had arrested the accused. The motorbike was recovered pursuant
to the confession statement of the accused. He had filed a report to
incorporate Sections 363 and 376(1) of the IPC in the charge.
According to him, he had recorded the statements of the witnesses
and on completion of the investigation, he had laid the charge sheet
before the court.
20. PW23, the Sub Inspector of Police, Hill Palace Police
Station, who dealt with the case at the initial stage, deposed that he
had registered the crime as Crime No.20/2007 under Sections 366A

CRL.A.NO.372 OF 2011 13
and 354 of the IPC. The FIR registered in the case got marked as
Ext.P21. According to him, he had conducted the preliminary
investigation of the case and he took steps to examine the victim by a
medical practitioner.
21. In this case, the main contention raised by the
learned counsel for the appellant/accused is that the age of the victim
not proved by the prosecution. While addressing this contention, the
age of the victim as 12 years stands proved through Exts.P23 and P12
and the evidence of PW2 and PW21, supported by the evidence of
PW1 and PW2. Most importantly, on the date of examination, the age
of the victim was 17 years, and this aspect was not at all challenged
during cross-examination of PW1. Therefore, the age of the victim
at the relevant time of occurrence, as stated to be 12 years,
stands satisfactorily proved and the contra contention put by the
learned counsel for the appellant/accused would not yield. 
22. In a prosecution alleging commission of sexual

CRL.A.NO.372 OF 2011 14
molestation, the evidence given by the prosecutrix or the victim,
when found to be wholly reliable and of sterling quality, the same can
be the sole basis of conviction, even without any corroboration. In
the instant case, PW1 had given evidence supporting occurrence.
Even though PW1 was cross-examined, nothing extracted to
disbelieve her version. In addition to the evidence of PW1, regarding
the penetrative sexual assault committed by the accused on two
occasions on 09.01.2007, the same would get corroboration from the
evidence of PW18, Dr.K.P.Biju, who had examined the victim on the
very next day of occurrence, i.e., on 10.01.2007, while he was
working as Assistant Surgeon, Taluk Hospital, Tripunithura, and
issued Ext.P10 certificate. The Doctor given evidence that
penetration was taken place and it was found further that hymen not
intact. He also deposed that swab taken for forensic analysis showed
blood stains and during further examination, he deposed that swab
contained blood stains due to injury to hymen and the
injury might be due to penetration of penis.

CRL.A.NO.372 OF 2011 15
Thus, the evidence of PW1 as well as PW18, supported by other
evidence would show that the appellant/accused had kidnapped
PW1, a minor girl, aged 12 years, from her school at 11.00 a.m. on
09.01.2007 to his house situated in Thammanam and subjected the
girl to sexual intercourse twice at 11.00 a.m. and 2.30 p.m. on the
said day, and thereby he had satisfied his lust. Thus, the ingredients
for the offences punishable under Sections 363 and 376(f) of the IPC
have been established by the prosecution successfully without any
iota of doubts, as found by the learned Sessions Judge. In such a
case, the contention raised by the learned counsel for the
appellant/accused that the prosecution failed to prove the offences
found to be committed by the learned Sessions Judge beyond
reasonable doubts, also is not acceptable.
23. Thus, on re-appreciation of evidence, this Court is of the
view that the learned Sessions Judge rightly entered into conviction
for the offences punishable under Sections 363 and 376(f) of the IPC
and the said conviction does not require any interference.

CRL.A.NO.372 OF 2011 16
24. Coming to the sentence, the sentence imposed is the
minimum possible and in such view of the matter, reduction in
sentence also cannot be considered.
In the result, this appeal fails and is dismissed by confirming the
conviction and sentence imposed by the Sessions Court.
Consequently, the order suspending sentence and granting bail to the
appellant/accused stands cancelled and his bail bond also stands
cancelled. The appellant/accused is directed to surrender before the
Sessions Court to undergo the sentence, forthwith, failing which, the
Sessions Court is directed to execute the sentence, without fail.
Registry is directed to forward a copy of this judgment to the
Sessions Court, for information and compliance.
Sd/-
A. BADHARUDEEN
JUDGE
Bb