1. Appeal against conviction for sexual assault—accused allegedly subjected elderly victim to sexual acts—offences punishable under Section 376(1) and 354A(1)(i) of the IPC. (Para 1 , 3 , 4 )
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2026 Supreme(Online)(Ker) 66862
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Badharudeen, J
MUHAMMED – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 2143/2024
Important Points
A correction in the date of occurrence by a victim, when corroborated by electronic evidence, is not a material contradiction. Similarly, a short, explained delay in filing an FIR in sexual assault cases does not render the prosecution's case unbelievable.
Subject
Criminal Law - Sexual Offences
Act Referred
Protection of Children from Sexual Offences Act
Indian Penal Code: S.354 A(1)(i), S.376(1)
Code of Criminal Procedure: S.428, S.357(1)(b), S.164
Evidence Act: S.65B
Indian Penal Code: S.354 A(1)(i), S.376(1)
Code of Criminal Procedure: S.428, S.357(1)(b), S.164
Evidence Act: S.65B
Headnote
(A) Indian Penal Code - Sections 354 A(1)(i) and 376(1) - Sexual assault and rape of an aged woman - Accused entered the victim's house under the pretext of removing evil spirits and subjected her to penetrative sexual assault by inserting fingers into her vagina and anus and pressing her breasts - Conviction and sentence passed by the Special Court challenged in appeal. (Paras 3, 10)
(B) Evidence - Material contradictions and omissions - A discrepancy regarding the date of occurrence, where the witness initially stated one date and subsequently corrected it in accordance with an additional statement, is not a material omission if corroborated by other evidence, such as call detail records (CDR) showing contact between the accused and the victim on the corrected date. (Para 18)
(C) Criminal Procedure - Delay in lodging FIR - A delay of 19 days in filing the first information report in a case of sexual molestation is not fatal to the prosecution if a reasonable explanation is provided, such as discussing the matter with family members. (Para 18)
(D) Medical Evidence - Absence of external injuries - Lack of external injuries upon medical examination conducted 20 days after the alleged incident does not disprove the assault, as injuries may have healed during the intervening period. (Para 20)
Facts of the case:
An aged woman was subjected to sexual assault by the accused, who claimed to be treating her for evil spirits. The accused performed acts involving the penetration of the victim's vagina and anus with his fingers and the touching of her breasts. The victim filed an FIR after a 19-day delay. During trial, the victim initially gave one date of occurrence but later corrected it. The trial court convicted the accused under Sections 354 A(1)(i) and 376(1) of the Indian Penal Code, sentencing him to rigorous imprisonment and fines.
Findings of Court:
The Court found that the victim's testimony was reliable and supported by CDR evidence showing calls between the parties on the corrected date of occurrence. The delay in filing the FIR was sufficiently explained. The lack of medical evidence of external injury was attributed to the time elapsed before the examination. The testimony of the victim, particularly in sexual offences, is given primacy unless there are compelling reasons to disbelieve it.
Issues: (i) Whether the Special Court was justified in holding that the accused committed the offence punishable under Section 354 A(1)(i) of the IPC? (ii) Whether the Special Court erred in holding that the accused committed the offence punishable under Section 376(1) of the IPC? (iii) Whether material omissions in the date of occurrence and delay in FIR were sufficient to vitiate the conviction?
Ratio Decidendi: Correction of the date of occurrence by a witness is not a material improvement when corroborated by electronic evidence. Short, explained delays in reporting sexual offences do not render the prosecution's case unreliable. The absence of physical injuries in a medical report is not conclusive against the prosecution if the examination occurred long after the event.
Result: Appeal fails and is accordingly dismissed. The conviction and sentence imposed by the Special Court are confirmed.
(B) Evidence - Material contradictions and omissions - A discrepancy regarding the date of occurrence, where the witness initially stated one date and subsequently corrected it in accordance with an additional statement, is not a material omission if corroborated by other evidence, such as call detail records (CDR) showing contact between the accused and the victim on the corrected date. (Para 18)
(C) Criminal Procedure - Delay in lodging FIR - A delay of 19 days in filing the first information report in a case of sexual molestation is not fatal to the prosecution if a reasonable explanation is provided, such as discussing the matter with family members. (Para 18)
(D) Medical Evidence - Absence of external injuries - Lack of external injuries upon medical examination conducted 20 days after the alleged incident does not disprove the assault, as injuries may have healed during the intervening period. (Para 20)
Facts of the case:
An aged woman was subjected to sexual assault by the accused, who claimed to be treating her for evil spirits. The accused performed acts involving the penetration of the victim's vagina and anus with his fingers and the touching of her breasts. The victim filed an FIR after a 19-day delay. During trial, the victim initially gave one date of occurrence but later corrected it. The trial court convicted the accused under Sections 354 A(1)(i) and 376(1) of the Indian Penal Code, sentencing him to rigorous imprisonment and fines.
Findings of Court:
The Court found that the victim's testimony was reliable and supported by CDR evidence showing calls between the parties on the corrected date of occurrence. The delay in filing the FIR was sufficiently explained. The lack of medical evidence of external injury was attributed to the time elapsed before the examination. The testimony of the victim, particularly in sexual offences, is given primacy unless there are compelling reasons to disbelieve it.
Issues: (i) Whether the Special Court was justified in holding that the accused committed the offence punishable under Section 354 A(1)(i) of the IPC? (ii) Whether the Special Court erred in holding that the accused committed the offence punishable under Section 376(1) of the IPC? (iii) Whether material omissions in the date of occurrence and delay in FIR were sufficient to vitiate the conviction?
Ratio Decidendi: Correction of the date of occurrence by a witness is not a material improvement when corroborated by electronic evidence. Short, explained delays in reporting sexual offences do not render the prosecution's case unreliable. The absence of physical injuries in a medical report is not conclusive against the prosecution if the examination occurred long after the event.
Result: Appeal fails and is accordingly dismissed. The conviction and sentence imposed by the Special Court are confirmed.
Legal Category Hierarchy
Advocates:
For the Appellants/Petitioners: Balamurali K.P., Manu Tom, Renil Iqbal K., Haripriya.M, Amal C. Peter, Mohammed Ashiq R.S., M.B.Soori
For the Respondents: M A Shihab
For the Appellants/Petitioners: Balamurali K.P., Manu Tom, Renil Iqbal K., Haripriya.M, Amal C. Peter, Mohammed Ashiq R.S., M.B.Soori
For the Respondents: M A Shihab
Table of Contents
2. Defense contended material improvements in victim's testimony, delayed FIR, and lack of medical corroboration, while prosecution asserted evidence supported the charges despite initial date errors. (Para 5 , 6 , 7 , 8 )
3. The court observed that material contradictions in witness statements were absent, and initial memory errors regarding the incident date were rectified and independently corroborated by call records. (Para 10 , 17 , 18 , 20 , 21 )
4. In cases of sexual assault, minor discrepancies in the testimony of an aged victim do not necessarily invalidate the prosecution’s case if supported by independent electronic evidence. (Para 18 , 20 )
5. The appeal is dismissed, conviction and sentence confirmed, and the accused is ordered to surrender to the trial court to undergo the remaining sentence. (Para 23 , 24 )
6. Can testimonial inconsistencies regarding the date of occurrence invalidate a prosecution for sexual assault?
Not if the victim’s version is reliable and corroborated by other evidence, such as mobile call detail records, and any initial error is reasonably explained through subsequent testimony. (Para 18 , 20 )
7. Does a delay in lodging an FIR automatically discredit a prosecution case involving sexual assault?
No, if the delay is sufficiently explained by the victim—such as awaiting family consultation—and the testimony of the survivor remains consistent with the core sequence of events. (Para 18 )
8. Is digital evidence, such as call details, admissible without a certificate under Section 65B of the Evidence Act?
No, such evidence is inadmissible unless the required statutory certificate is produced; however, where the certificate is part of the electronic record tendered, the evidence is legally valid and admissible. (Para 16 , 20 )
9. Does the absence of external injury noted during a medical examination performed weeks after an assault invalidate a charge of rape?
No, judicial notice is taken that physical injuries may heal over weeks; a lack of visible injury does not negate allegations of sexual assault, especially for an elderly victim. (Para 20 )
JUDGMENT
The verdict in S.C.No.454/2023 on the files of the Special Court under the Protection of Children from Sexual Offences Act (`POCSO Act' for short), Thrissur, is under challenge in this appeal, filed at the instance of the sole accused.
2. Heard the learned counsel for the appellant/accused and the learned Public Prosecutor. Perused the judgment and evidence available.
3. Here the prosecution alleges commission of offences punishable under Sections 354 A(1)(i) and 376(1) of the Indian Penal Code (`IPC' for short), by the appellant/ accused. The specific allegation is that at about 12.30 p.m on 08.10.2022 the appellant herein reached the house of the victim, an aged lady, and thereafter he had subjected her to penetrative sexual assault by inserting his finger on her vagina and also on poking her anus and pressing on her breast.
4. The learned Special Judge recorded the evidence of PWs1 to PW13 and marked Exts.P1 to P19 on the side of the prosecution. On the side of the defence, DW1 was examined, apart from putting Exts.D1 to D4 contradictions during the cross-examination of PWs 3, 5, 6 and 8 respectively. On appreciation of evidence, the learned Special Judge found that the appellant/accused had committed the offences punishable under Sections 354 A(1)(i) and 376(1) of IPC and accordingly he was convicted and sentenced as under:
In the result,
1. The accused is sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- u/s.376(1) of IPC. In default of fine he shall undergo rigorous imprisonment for a period of I year.
2. The accused is also sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.25,000/- u/s.354(A)(1)(i) of IPC . In default of fine he shall undergo rigorous imprisonment for a period of 2 months.
3. Substantive sentences shall run concurrently.
4. The accused is allowed to set off u/s.428 of Cr.PC., the period of detention already undergone in judicial custody from 03.12.2022 to 13.01.2023 against the substantive sentence of imprisonment.
5. If the fine amount is realized, it shall be given to PW2, the survivor u/ s.357(1)(b) Cr.PC.”
5. The learned counsel for the appellant/accused argued that the learned Special Judge failed to appreciate the evidence in its proper perspective. According to him, PW2, the victim, who gave evidence in support of prosecution, initially had given evidence that the occurrence was at 07.10.2022. Thereafter, on the defence side, DW1, the son of PW2, was summoned and examined. Thereafter PW2 was recalled and then PW2 had given evidence that the date of occurrence was on 08.10.2022 and what she stated during her initial examination as to the date of occurrence as 07.10.2022 was incorrect. According to the learned counsel for the appellant, this version of PW2 is a material improvement, and a witness cannot be permitted to introduce a material improvement in support of the prosecution case after having tendered evidence earlier on the same aspect. In support of the said contention, the learned counsel placed reliance on the following decisions:
(i) [(1981) SCC 752], State of Rajasthan v. Kalki wherein it was held that minor discrepancies may be ignored, but material contradictions affecting the substratum of the prosecution case cannot.
(ii) [(2014) 5 SCC 389], Radhey Shyam v. State of Rajasthan wherein it was held that material improvements affecting the core prosecution story render the testimony unreliable.
(iii) [(2009) 11 SCC 334], Mahendra Pratap Singh v. State of Uttar Pradesh , it was held that improvements introduced during trial on vital facts substantially weaken the prosecution case.
6. It is also pointed out that the original FIS did not contain the time at which it was recorded, as is evident from Ext.D4. It is further pointed out that Ext.P2, produced on her behalf, is an FIS in similar terms, wherein the time of recording the statement is specifically shown as 21:45 hours. According to him, an unexplained alteration or in
