JAYANTHA POOJARI vs THE STATE OF KERALA

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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
TUESDAY, THE 10 DAY OF NOVEMBER 2026 / 19TH KARTHIKA, 1948
CRL.A NO. 714 OF 2018
CRIME NO.297/2013 OF MANJESWAR POLICE STATION, KASARGOD
AGAINST THE JUDGMENT DATED 19.05.2018 IN SC NO.427 OF 2013 OF
ADDITIONAL SESSIONS COURT - I, KASARAGOD
APPELLANT/ACCUSED:
JAYANTHA POOJARI
AGED 26 YEARS
S/O. SEETHARAMA POOJARY,
RESIDING AT PALTHAJE HOUSE,
SALETHOOR POST,
KOLNAD VILLAGE,
BANTWAL TALUK,
KARNATAKA STATE.
BY ADV SRI.T.G.RAJENDRAN
ADV.REKHA.S, STATE BRIEF
RESPONDENT/STATE:
THE STATE OF KERALA
THROUGH THE STATION HOUSE OFFICER,
MANJESHWAR POLICE STATION,
KASARAGOD DISTRICT,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682031.
BY SMT.AMBIKA DEVI S, SPECIAL GOVERNMENT PLEADER
(ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF
WOMEN AND CHILDREN)
BY SRI. SAJEEV P. K., SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
30.10.2026, THE COURT ON 10.11.2026 DELIVERED THE FOLLOWING:

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'C.R.'

JUDGMENT
th
Dated this the 10 day of November, 2026
The sole accused in S.C. No.427/2013 on the files of the
Additional Sessions Court – I, Kasaragod, has filed this appeal,
under Section 374(ii) of the Code of Criminal Procedure, 1908
challenging the conviction and sentence imposed by the
Special Judge, against him, as per the judgment dated
19.05.2018. The State of Kerala is the respondent herein.
2. This appeal has been filed originally by Adv. Sri.
T. Madhu for and on behalf of the appellant and later he had
relinquished the vakalath and Adv. Sri. T.G. Rajendran filed
fresh vakalath. Thereafter, it is submitted by Adv. T.G.
Rajendran, the learned counsel for the appellant that despite
issuance of notice and acceptance of the same, the appellant
did not turn up. Accordingly, he reported 'no instructions' from
the appellant.
3. In view of the above, in order to dispose of this
appeal on merits, Smt. Rekha S., Senior Counsel, who worked

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for the last five years as Senior Public Prosecutor of the State
of Kerala, is appointed as State Brief. Heard Smt. Rekha S., the
learned State Brief and the learned Senior Public Prosecutor for
the respondent in detail. Perused the judgment under
challenge and the records of the Special Court.
4. The crux of the allegation is that, at 6.00 p.m., on
03.05.2013, the accused, an autorickshaw driver, subjected
PW4, a minor victim, aged 17 years, to penetrative sexual
assault. Thereby, the prosecution alleges commission of
offences punishable under Sections 366A and 376 of the Indian
Penal Code (hereinafter referred to as the 'IPC', for short) as
well as under Section 4 of the Protection of Children From
Sexual Offences Act, 2012 (hereinafter referred to as the
'POCSO Act', for short), by the appellant/accused.
5. The learned Special Judge, recorded evidence after
framing charge for the above said offences and completed trial.
During trial, PW1 to PW13 were examined, Exts.P1 to P16 and
MO1 series were marked on the side of the prosecution. On the
side of the defence, DW1 to DW4 were examined.
6. On analysis of evidence, the learned Special Judge

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found that the appellant/accused had committed offences
punishable under Sections 376(1) of the IPC and under
Sections 4 of the POCSO Act. Accordingly, the
appellant/accused was convicted for the said offences and
sentenced as under:-
“In the result
(a) The accused named Jayantha Poojari s/o. Seetharama
is sentenced to undergo rigorous imprisonment for seven years
and to pay a fine of ₹ 30,000/- (Rupees thirty thousand only) in
default to undergo rigorous imprisonment for four more months
for the offence punishable u/s. 376(1) of IPC.
(b) By virtue of the provisions under section 42 of
Protection of Children from Sexual Offences Act, no separate
sentence is imposed on the accused for offence punishable under
section 4 of POCSO Act.
(c) As the accused is found not guilty of the offence
punishable under section 366A of IPC, he is acquitted of said the
offence.
(d) The period of detention undergone by the accused shall
be set off against the substantive sentence of imprisonment
imposed, u/s. 428 of Cr.P.C.
(e) If the fine amount is paid or realised from the accused,
the same shall be given to PW4 (the victim) as compensation u/s.
357 of Cr.P.C.
(f) The accused is informed that the appeal against this
judgment and order shall be preferred within 60 days from
today, if he wishes to appeal.
(g) MO.1 Series being the valueless garments shall be
destroyed after appeal period is over.”
7 . The learned State Brief specifically argued four points

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to unsustain the verdict. The first point argued is that PW4, the
victim, though initially given evidence supporting the prosecution,
when she was examined in chief and was subjected to cross
examination, later when she was recalled and cross-examined,
she had denied the evidence given earlier. Therefore, the evidence
of PW4 extracted during cross examination, after recalling her
would substantiate the fact that the occurrence itself is false. For
the said reason alone, the verdict is liable to be set aside.
Secondly, it is argued that the accused has a specific case that he
had been falsely implicated in this case and he suffered injuries
when he was assaulted by a group of persons and for which crime
was registered as discernible from the evidence of DW1 to DW4.
Thirdly, it is pointed out that even though Ext.P2 birth certificate
was tendered in evidence through PW2, the Secretary of Vorkady
Grama Panchayath to prove the date of birth of the victim
examined as PW4 as 08.02.1996, there is name difference in
Ext.P2. According to the learned State Brief, PW5, the sister of
PW4 when recalled and re-examined stated that PW4 had no
name as stated in Ext.P2. Similar evidence also given by PW4,
when she was cross examined after her recall. Thus the contention

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raised by the learned State Brief is that, the age of the victim as a
minor is not proved. Fourthly, a contention also raised disputing
the jurisdiction of the police and the Special Court to deal with the
case on the submission that as per the scene plan, the place of
occurrence is within the State of Karnataka. Accordingly, the
learned State Brief submitted that the appellant is liable to be
acquitted.
8. Repelling these contentions, it is pointed out by the
learned Senior Public Prosecutor that, in fact, PW4, the victim was
examined as early on 26.02.2016 and thereafter, an attempt was
made to recall her for further cross examination. But when the
learned Special Judge dismissed the petition, the appellant herein
filed Crl.M.C No. 2876/2016 before this Court and as per order
dated 23.05.2016 therein, this Court allowed the petition which
led to recalling and further cross examination of PW4. According to
the learned Senior Public Prosecutor, going by the order dated
23.05.2016 in Crl.M.C. No. 2876/2016 in paragraph No. 4, this
Court fixed certain parameters for cross examination of PW4, on
her recall; but the same were not followed by the Special Court
and thereafter, on her further cross examination, she had denied

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the allegations spoken during her earlier examination on
26.02.2016. It is submitted that a witness, after giving evidence in
support of the party who produced and the said witness, when
recalled for further cross examination, speaks against the party
who produced the witness, changing the earlier version, the
inference to be drawn is that the witness was won over by the
other side. Be it so, the said evidence could not be believed or to
be acted upon. In this connection, the learned Senior Public
Prosecutor placed a decision of this Court in Ramesh v. State of
Kerala reported in [2026 Supreme(Online)(Ker) 67825]
wherein paragraph No. 15, this Court considered a similar case
and hesitated to act upon the evidence of the victim, when she
had given contra version when she was recalled and cross
examined again on 11.03.2014, after her original examination on
05.11.2013. According to the learned Senior Public Prosecutor, the
same ratio would apply to the facts of this case. It is argued by
the learned Senior Public Prosecutor that PW4, the victim, and
PW5, the sister of the victim were won over by the accused at a
later point of time. Therefore, the evidence tendered by them
after their recall, in negation to the evidence earlier given, cannot

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be accepted or acted upon.
9. Regarding the name difference in Ext.P2, it is submitted
that the name appears in Ext.P2 and the name of the victim are
having similarity with an addition of 'th' in Ext.P2. Therefore, this
aspect also would not stand in the way of the prosecution.
According to him, the evidence of DW1 to DW4 regarding the
assault suffered by the accused, in fact, is an occurrence, after
this occurrence. According to him, knowing commission of rape by
the appellant, people gathered therein and assaulted him. Then
the evidence of DW1 to DW4 is of no relevance. Therefore, the
verdict is liable to be confirmed.
10. 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(1) of the IPC?
2. Whether the Special Court is right in finding
that the accused committed the offence under Section 4
of the POCSO Act?
3. Whether the verdict of the Special Court
would require interference?
4. The order to be passed?

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11. Point Nos. 1 to 4 :- In this case, in order to prove the
age of the victim as a 'child' as defined under Section 2(1)(d) of
the POCSO Act, Ext.P2, birth certificate was tendered in evidence
through PW2, the Secretary of Vorkady Grama Panchayat showing
her date of birth as 08.02.1996. In the birth certificate,
her name shown as 'xxxxxth' (7 letters), but her name is 'xxxxx'
(5 letters). 'xxxxx' in Ext.P2 birth certificate and her name are one
and the same, though 'th' could be additionally found in Ext.P2, as
suffix. It is relevant to note that in Ext.P2, the parents' names
also were stated without any ambiguity and therefore, merely
because PW5 the sister of PW4, when she was recalled and cross-
examined in similar way as that of PW4 stated that PW4 had no
name as stated in Ext.P2, the same is not a reason to hold that
Ext.P2 certificate is not the birth certificate of PW4, the victim. If
so, by best evidence, the prosecution succeeded in proving that
PW4 is a 'child' as defined under Section 2(1)(d) of the POCSO
Act. Otherwise during examination of PW4 and PW5 and other
witnesses nothing extracted to hold that PW4 was not a child, at
the time of occurrence. Therefore, the said contention could not
be accepted.

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12. PW4, the victim, who was aged 19 years, as on
26.02.2016, when initially examined, she deposed in support of
prosecution allegations. According to her, she was residing at
Thalakki and she had another name as 'yyyyy'. She studied upto
tenth class in Mudippura School, Karnataka. She had gone to
purchase of vegetables on 03.05.2013. While she was waiting at
Salathur Bus Stand, the accused reached there in an autorickshaw
and informed that he was going to Bakkaravayal. Then she
entered into the autorickshaw. She alone was in the autorickshaw.
When the autorickshaw reached Nandharavayal, the autorickshaw
entered into bye-lane. In fact, she did not want to go in that bye-
lane. Soon the autorickshaw reached on a hill. Then the accused
had taken her from the autorickshaw to the hill and thereby she
made noise. Then he had removed her churidar pant and shuddy;
and mounted over her; and then he inserted his penis into her
vagina for ten minutes. Then people gathered therein. Soon in
another autorickshaw, she was brought to her house. She had
informed the same to PW5 and PW6 and accordingly she was
taken to the hospital. She had given statement to the police
regarding the occurrence and it was through her, Ext.P4, her

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statement, so given was tendered in evidence. According to her,
she had shown the place of occurrence to the police and she
identified MO1 series, four in numbers, as the dress worn by her
at the time of occurrence. She identified the accused at the dock,
after identifying him at the police station. Though she was cross
examined, she reiterated her earlier versions without any
ambiguity. Thus the evidence of PW4 is candid and consistent
when she was examined on 26.02.2016.
13. It is relevant to note that after her initial examination
on 26.02.2016, defence had attempted to recall and cross
examine her further. But the petition filed in this regard was
disallowed by the Special Court. But the appellant/accused filed
Crl.M.C. No. 2876/2016, as pointed out by the learned Senior
Public Prosecutor, before this Court and this Court allowed the
petition on condition, as stated in paragraphs 4 of the order, which
is extracted as under:-
“4. Having regard to the fact that the evidence shall not
be shut out to the prejudice of an accused, I feel that, one more
opportunity can be granted to the petitioner to pursue his
application for recalling the witness, provided the general facts
touching upon, which he omitted to cross examine or the facts
touching upon which, he propose to cross examine are
mentioned in detail. So the court can be evaluate the

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application afresh in the light of above.”
14. Although the order of this Court was to facilitate cross
examination of PW4, regarding matters omitted or the facts
touching upon which should be mentioned in detail, as mandated
above, when PW4 was cross-examined, as permitted by this
Court, the opportunity was used to negate her evidence already
recorded. During further cross-examination, PW4 had denied the
extra 'th' in her name and according to her, she did not remember
the accused and there was no occurrence of sexual assault.
According to her, she had given statement to the effect that the
accused committed rape on her, as threatened by somebody. Thus
this is a case wherein the evidence of PW4, when she was
examined on 26.02.2016 was fully in support of prosecution
without any contradictions and ambiguity. But during further
cross-examination, after her recall, PW4 negated her earlier
evidence.
15. In this connection, it is relevant to refer the evidence of
PW1, the doctor who had examined PW4 soon after the
occurrence. PW1, the Doctor, Jyothi. S, who worked as Consultant
Gynecologist, Government General Hospital, Kasaragod deposed
that she had examined the victim, at 11.30 p.m., on 03.05.2013,

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came with history of alleged sexual assault at 06.30 p.m., on
03.05.2013. Her evidence is that “on examination, there is an
injury on the vagina with abrasion of 1 x 1 cm on the right
side of the vagina with opinion that there is evidence of
vaginal penetration.”
16. During cross examination also, she stated that “when
there is sufficient evidence of vaginal penetration, no need
of examination of her cloths. I came to conclusion that
there is vaginal penetration on the basis of rupture of
hymen.” At the same time, during cross examination, PW1
agreed to the possibility that hymen may be ruptured by
accidental fall or introduction of foreign body other than penis.
17. Thus, this is a case, wherein the candid version of PW4,
when she was examined on 26.02.2016 is to the effect that the
accused raped her. This version is fortified by the medical evidence
given by PW1 which would show that there was evidence of
vaginal penetration when PW4 was examined after five
hours of the occurrence. It is true that PW5, the sister of PW4
initially supported intimation given by PW4 regarding the
commission of rape by the accused also, when she was re-called

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and cross-examined again on 09.06.2017, denied the same in
similar way as done by PW4.
18. Apart from these, PW6, an attester to Ext.P5 was
examined to prove the same. He deposed supporting Ext.P5
seizure mahazar prepared while seizing MO1 series. PW7, an
attester to the Ext.P6 scene mahazar also supported the same.
Sri.Satheesh Kumar, the then Civil Police Officer attached to the
Manjeshwaram Police Station was examined as PW8. He was an
attestor to Ext.P7 seizure mahazar as per which the auto rickshaw
involved in this case was seized. Sri. Mohanan, the then ASI of
Police, Manjeshwaram who registered this case as per Ext.P8 FIR
was examined as PW9 and he supported this aspect.
19. Dr. Rajesh, the then Assistant Surgeon, Government
Hospital, Kasaragod who conducted the potency test on the
accused was examined as PW10 to prove Ext.P9, certificate of
potency of the accused. He had given evidence that the appellant
was capable of performing sexual acts. Sri. Ranjith, the then
Inspector of Police, Kumbla, the Investigating Officer was
examined as PW11. He testified that he had conducted
investigation, effected the arrest of the accused, recorded the

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statements of the persons acquainted with the facts of this case.
Ext.P10, the memo of arrest, Ext.P11 the inspection memo and
Ext.P12, the report showing the true and full name and address of
the accused were let in evidence through him. Ext.P13, the report
for adding Section 366A of the IPC. Ext.P14 is the forwarding
note. Ext.P15, the chemical examination report also proved
through him. Sri.Bijulal, the then Sub Inspector of Police,
Manjeshwaram was examined as PW12. According to him, he had
inspected the place of occurrence and prepared Ext.P6 scene
mahazar. Ext.P16 is the property list. PW13, Sri. Sibi Thomas, the
then Inspector of Police, Kumbla, who filed the final report before
the court on the completion of the investigation gave evidence in
this regard.
20. Apart from that in this case, the evidence of DW1 to
DW4 was discussed by the learned Special Judge in paragraph No.
25 of the judgment impugned, which reads as under:-
“25. The evidence of DW1 to DW4 would go to show
that the accused had sustained certain injuries at the
same place of occurrence as alleged by the prosecution.
DW2 and DW4 gave evidence to the effect that
Manjeswaram police had registered a case on the basis of
the first information statement of the accused in this case.

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DW3 an independent witness who gave evidence to the
effect that he witnessed the incident of attacking the
accused by a group of people around 50 in numbers. The
learned defence counsel contented that since the time of
the attacking the accused was 5:30 p.m., by a group of
around 50 persons then there is no possibility to commit
sexual assault on the victim at 6:00 p.m. On considering
the oral testimony of PW4 it is well established that some
persons have reached at the scene of occurrence and
blocked the auto rickshaw. The alleged incident of
attacking the accused is tallying with the oral testimony of
the victim. Moreover, PW11 who effected the arrest of the
accused also has the case that at the time arresting the
accused he had noticed certain injuries on the body of the
accused. It is true that PW11 arrested the accused after
getting him discharged from the hospital. Since the
Manjeshwaram police had registered a case on the alleged
incident of attacking the accused, PW11 did not make
further inquiry and investigation on that score. On
considering the totality of the evidence adduced by the
Dws., I am not in a position to think that the defence
could succeed with their oral and documentary evidence
in disproving the prosecution case.”
21. Going by the evidence of DW1 to DW4, the finding of
the learned Special Judge is only to be justified. While addressing
the contentions raised by the learned State Brief, it is held that the
evidence of PW4 and PW5, given after their recall cannot be acted

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upon for the reasons pointed out by the learned Senior Public
Prosecutor. That is to say, when a witness, after giving evidence in
support of the party who produced, and the said witness, when
recalled for further cross examination, speaks against the party
who produced the witness, changing the earlier version, the
inference to be drawn is that the witness was won over by the
other side. Be it so, the said evidence could not be believed or to
be acted upon or the same lacks its probative value. Same is the
position with regard to the name difference in Ext.P2, as Ext.P2
substantially proved the age of PW4, to hold her status as a child
at the time of occurrence, in a case where, her age was only 19
years when she was examined on 26.02.2016, for which no
challenge was raised. False implication of the appellant also could
not be found as argued by the State Brief, since the accused
suffered assault subsequent to this occurrence. Regarding the
jurisdictional issue, in fact, the available evidence would
substantiate that the occurrence was within the State of Kerala,
within the jurisdiction of Manjeshwar police station and the
territorial jurisdictional issue not at all raised before the trial court.
As far as the question of territorial jurisdiction is concerned, since

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the same would not take in inherent lack of jurisdiction, that
cannot be considered at the appellate stage. Then this contention
also must fail. Thus all contentions advanced by the learned State
Brief are found against.
22. Summing up, on re-appreciation of evidence, it is held
that the prosecution successfully established commission of
offences under Section 376(1) of the IPC and Section 4 of the
POCSO Act, as found by the learned Special Judge. Hence the
conviction is liable to sustain.
23. Coming to the sentence, seven years imprisonment was
imposed for the offence punishable under Section 376(1) of the
IPC and no sentence was imposed for the offence under Section 4
of the POCSO Act, in view of Section 42 of the POCSO Act. The
minimum sentence provided for the offence under Section 4 of the
POCSO Act is seven years prior to its amendment with effect from
16.08.2019 (thereafter the sentence enhanced to minimum 10
years). Be it so, the sentence imposed herein is the bare minimum
prescribed. In such view of the matter, the sentence imposed also
does not require any interference. Accordingly, the sentence
imposed is confirmed.

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24. In the result, this Criminal Appeal fails and is
accordingly dismissed, confirming the verdict impugned.
25. The bail bond executed by the appellant/accused shall
stand cancelled. The order suspending sentence and granting bail
to the appellant/accused stands vacated, with direction to the
appellant/accused to appear before the Special Court forthwith to
undergo the 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 concerned for information and compliance.
SD/-
A. BADHARUDEEN
JUDGE
DCS