Kerala High Court Orders Re-Trial In Convict's Appeal After Finding Trial Court Acquitted Him Of Attempt To Rape Despite Victim's Sterling Testimony

Justice A. Badharudeen further clarified that though an appellate court cannot suo motu enhance the conviction or punishment awarded to an accused while considering his appeal, it is empowered to order a re-trial as per the Apex Court decision in Nagarajan v. State of Tamil Nadu:

"as per the decision in Nagarajan's case (supra), High Court cannot suo motu exercise its revisional jurisdiction and enhance the sentence against the accused while maintaining the conviction. It was held further that, all that the High Court can do is : (i) to set aside the judgment of conviction and sentence and acquit the accused; (ii) while doing so, order for a retrial and (iii) in the alternative, while maintaining the conviction, reduce the sentence."

The Court was considering an appeal filed by a man convicted of the offences under Sections 323 [Punishment for voluntarily causing hurt], 354 [Assault or criminal force to woman with intent to outrage her modesty] and 452 [House-trespass after preparation for hurt, assault or wrongful restraint] of the IPC.

The prosecution allegation was that the accused, armed with a knife, trespassed into the house of the de facto complainant and attempted to commit rape on her. He was accused of Sections 323, 452 and Section 511 [Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment] r/w 376 [Punishment for rape] IPC.

After the Sessions Court convicted him, the accused move the High Court in appeal and contended that the ingredients of the offences are not made out against him. The prosecution, on the other hand, argued that offences under Section 511 read with Section 376 is made out from the evidence though he was not found guilty under these provisions. However, it was conceded that the State had not appealed against the decision.

On appreciating the evidence, the Court agreed with the prosecution and was inclined to register a suo motu revision. However, when the matter was placed before the Chief Justice, it was opined that such a course of action is not permissible in view of the decision in Nagarajan v. State of Tamil Nadu.

Thereafter, the Court considered whether the impugned judgment of the Sessions Court needed interference. It noted that as per the testimony of the victim (PW1), the appellant/accused had gotten into her house with a knife, attacked her and pinned her down on the bed. Thereafter, he kissed her on the face and touched her private areas and when attempted to escape, her hit her head. She had also stated that he pushed him down and escaped to her uncle's house.

The Court also considered the evidence tendered by the other witnesses, including that of her uncle (PW2), who had deposed about the victim telling him about accused getting hold of her but not the remaining part of the over act.

The Court noted that the Sessions Court gave much importance to the uncle's testimony to disbelieve the victim's testimony regarding the rest of the over acts done against her. It then observed that the victim was a sterling witness and there was no need to disbelieve her.

It was further opined that as per settled law, in sexual assault cases, the evidence of the victim, if found to be of sterling quality, can form the sole basis of conviction. It was of the view that the Sessions Court's decision required reconsideration and therefore, a retrial is the option.

“In the instant case, evidence was already recorded and, in such view of the matter, though the trial carried out by the learned Sessions Judge is reverted to the stage of hearing the matter on merits, the trial before that stage, is kept in tact. Thus the learned Sessions Judge shall hear both sides and to deliver a judgment in accordance with law, regarding the offences made out from the evidence available,” it added.

The Court thus allowed the appeal and set aside the sentence and conviction under Sections 323, 452 and 354 IPC. It asked the accused to surrender before the Sessions Court, which was directed to pass a fresh judgment within 6 weeks.

Counsel for the petitioner: C.K. Vidyasagar, P. Chandy Joseph

Counsel for the respondent: M.A. Shihab – Public Prosecutor