Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Ker) 569

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Suresh @ Kadakam S/O. Cristudas - Appellant
Versus
State Of Kerala Represented By The Public Prosecutor - Respondent
CRL.A NO. 246 OF 2016
Decided on : 18-05-2026

Advocates Appeared:
For the Appellant : ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY
For the Respondent: SR PP RENJIT GEORGE

Pre-2013 IPC requires penile penetration for rape conviction; contusion with intact hymen and witness accounts establish only attempt under Section 511 read with 376 IPC.

Headnote:(A) Indian Penal Code, 1860 - Sections 375, 376(2)(f) and 511 - Code of Criminal Procedure, 1973 - Section 374 - Indian Evidence Act, 1872 - Sections 6 and 8 - Rape on minor girl aged two years - Conviction under Section 376(2)(f) challenged in appeal - Pre-amendment requirement of penetration to constitute rape - Distinction between attempt to commit rape and preparation or indecent assault explained.

(B) Evidence - Res gestae - Admissibility under Section 6 requires spontaneity and immediacy with no appreciable interval for fabrication - Statements made after delay not part of res gestae.

Facts of the case:
Sole accused was tried and convicted for committing rape on a two-year-old minor victim, daughter of prosecution witness. Occurrence dated back to 2005 when victim was found sitting on accused's lap without undergarment. Prosecution relied upon statements of mother and another witness, supported by medical evidence showing contusion around vaginal orifice though hymen remained intact. Victim could not be examined owing to tender age.

Findings of Court:
Evidence established attempt to commit rape but failed to prove actual penetration necessary under pre-amendment law. Medical findings and witness accounts supported conviction for attempt rather than completed offence of rape.

Issues: Whether ingredients of rape were proved; whether non-examination of child victim is fatal; whether statements qualify as res gestae; whether conviction requires modification.

Ratio Decidendi: Penetration is sine qua non for rape; absence of proof that any part of male organ entered labia of pudendum means only attempt is established. Non-examination of victim of tender age is not fatal where other reliable evidence proves attempt. Appellate court may alter conviction to lesser offence of attempt when evidence warrants.

Result: Appeal allowed in part. Conviction and sentence under Section 376 set aside. Accused convicted under Section 511 read with 376 and sentenced to rigorous imprisonment for five years with fine and compensation to victim.

JUDGMENT :

A. BADHARUDEEN, J.

1. 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 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 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 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 superio