In an accused’s appeal, the High Court may order retrial but cannot suo motu enhance conviction or sentence.

The appellant, Biju, was the sole accused in S.C. No. 179 of 2011 before the Sessions Court, Thodupuzha.

The prosecution alleged that on 3 July 2010, at approximately 5:30 p.m., the accused entered the house of PW1, who was alone, allegedly carrying a knife, assaulted her, attempted to remove her clothes, touched and kissed her, and attempted to commit rape; the attempt allegedly failed when PW1 resisted and escaped

The prosecution examined PW1 to PW8 and produced documentary and material evidence, including the first information statement, scene mahazar, potency certificate, sketch, and the victim’s clothes.

The Sessions Court acquitted the accused of the alleged offence under Section 511 read with Section 376 IPC but convicted him under Sections 323, 354 and 452 IPC, sentencing him to concurrent terms of imprisonment, the maximum being four years under Section 452 IPC.

In appeal, the accused challenged the findings under Sections 323, 354 and 452 IPC.

The State contended that the evidence disclosed an attempt to commit rape under Section 511 read with Section 376 IPC, but conceded that no appeal or revision had been filed by the prosecution against the Sessions Court’s findings.

1. Whether the Sessions Court was correct in holding that the accused committed an offence under Section 323 IPC?

2. Whether the Sessions Court was correct in convicting the accused under Section 354 IPC?

3. Whether the conviction under Section 452 IPC was legally sustainable?

4. Whether the evidence disclosed any other offence, particularly an attempt to commit rape under Section 511 read with Section 376 IPC, which the Sessions Court had failed to consider?

5. Whether, in an appeal filed only by the accused, the High Court could exercise suo motu revisional jurisdiction to convict the accused for another or more serious offence, enhance the sentence, or order a retrial?

The Court applied Sections 323, 354, 376, 452 and 511 IPC.

Section 511 criminalises an attempt to commit an offence where the accused has moved beyond preparation and performed an act towards commission of the substantive offence; under Aman Kumar v. State of Haryana, an attempt to rape requires conduct demonstrating an intention to have sexual intercourse despite resistance, whereas conduct amounting only to indecent assault may attract Section 354 IPC.

The Court also relied on the principle that the credible and sterling testimony of a victim of sexual assault can, by itself, sustain conviction.

Regarding appellate and revisional limits, Nagarajan v. State of Tamil Nadu, 2025 INSC 802, was applied for the rule that, in an appeal filed solely by the accused, the High Court cannot suo motu enhance the sentence or convict the accused for another charge; however, it may set aside the conviction, order a retrial, or reduce the sentence.

The Court also considered Praban Kumar Mitra v. State of West Bengal, Honnaiah T.H. v. State of Karnataka and Syed Shahnawaz Ali v. State of Madhya Pradesh for the principle that revisional jurisdiction under Sections 397 and 401 CrPC is discretionary, may be exercised suo motu in appropriate cases, and is directed towards supervising the legality, correctness and propriety of subordinate criminal proceedings.

The High Court found that PW1 gave a detailed account of the accused’s entry into the house, physical restraint, attempted removal of her clothes, sexual touching, kissing, assault and the presence of a knife; despite cross-examination, nothing material was elicited to discredit her testimony.

The Sessions Court had relied substantially on PW2’s limited account of what PW1 initially narrated and on PW3’s evidence to reject parts of PW1’s testimony.

The High Court held that this approach was unsustainable because PW1’s evidence, if found reliable, could be acted upon as the sole basis of conviction, and the omission to narrate every detail immediately after the incident did not necessarily contradict her courtroom testimony.

The Court considered that the evidence potentially established conduct going beyond a mere indecent assault and disclosed an attempt to commit rape under Section 511 read with Section 376 IPC.

Nevertheless, because the appeal was filed only by the accused and the State had not challenged the Sessions Court’s failure to record the more serious offence, the High Court could not itself convert the finding into a conviction for the additional offence or enhance the sentence.

Applying Nagarajan, the Court held that setting aside the impugned conviction and directing reconsideration on the basis of the evidence was permissible, while preserving the completed stages of the earlier trial.

The convictions and sentences imposed under Sections 323, 354 and 452 IPC were set aside.

The Sessions Court, Thodupuzha, was directed to hear both sides and determine, on the evidence already recorded, what offences had been committed by the accused, including any offence disclosed by the evidence, and to render an appropriate judgment in accordance with law.

The matter was not remanded for a completely fresh trial; the proceedings were reverted to the stage of hearing and decision on merits.

The appellant was directed to surrender before the Sessions Court on 22 October 2026; the interim bail order was to remain in force until 11:00 a.m. that day, after which the appellant could seek regular bail.

The Sessions Court was directed to decide the matter within six weeks of receiving the High Court’s judgment.