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Kerala High Court

Prasad, S/O.Babu vs The State Of Kerala on 10 December, 2025

Author: Bechu Kurian Thomas

Bench: Bechu Kurian Thomas

Crl.Appeal No.375/2015                1

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                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

              THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

  WEDNESDAY, THE 10TH DAY OF DECEMBER 2025 / 19TH AGRAHAYANA, 1947

                               CRL.A NO. 375 OF 2015

      CRIME NO.495/2010 OF Varappuzha Police Station, Ernakulam

       AGAINST THE JUDGMENT DATED 20.03.2015 IN SC NO.562 OF 2012 OF

ADDITIONAL SESSIONS COURT ( FOR THE TRIAL OF CASES RELATING TO

ATROCITIES      &     SEXUAL    VIOLENCE   AGAINST     WOMEN   AND   CHILDREN),

ERNAKULAM

          CP NO.3 OF 2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,

                                   NORTH PARAVUR

APPELLANT/ACCUSED:

              PRASAD,
              S/O.BABU, AGED 31 YEARS
              VADHYARPARAMBU HOUSE,
              DEVASWOMPADAM KARA,
              VARAPUZHA VILLAGE.


              BY ADVS.
              SHRI.SANTHOSH KUMAR V.P.
              SRI.SAJEEVAN KURUKKUTTIYULLATHIL
              SMT.M.P.SHERIN
              SHRI.VISHNU PRABHAKAR V.S.
              SHRI.ASHWIN K.U.
              SMT.ADWAITHA UDAYAN
              SHRI.AKSHAY SHYLESH
              SHRI.DILSHAD SHAJI



RESPONDENT/COMPLAINANT:

              THE STATE OF KERALA
              REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE,
 Crl.Appeal No.375/2015           2

                                                      2025:KER:95392

              NORTH PARAVUR TALUK,
              THROUGH THE PUBLIC PROSECUTOR,
              HIGH COURT OF KERALA, ERNAKULAM.



              SMT. SREEJA V., PUBLIC PROSECUTOR


       THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.12.2025,
THE COURT ON 10.12.2025 DELIVERED THE FOLLOWING:
 Crl.Appeal No.375/2015                   3

                                                                    2025:KER:95392



                       BECHU KURIAN THOMAS, J.
                       --------------------------------
                        Crl. Appeal No.375 of 2015
                       ---------------------------------
                  Dated this the 10th day of December, 2025

                                     JUDGMENT

Aggrieved by the conviction and sentence imposed upon the

accused in S.C. No.562 of 2012 on the files of the Additional Sessions

Court (For the trial of cases relating to Atrocities & Sexual Violence

against Women and Children), Ernakulam, the accused has preferred this

appeal, challenging the said conviction.

2. The appellant was the accused in Crime No.495 of 2010 of

Varapuzha Police Station, which was tried as S.C. No.562 of 2012 before

the Additional Sessions Court, Ernakulam. He has been sentenced to

undergo rigorous imprisonment for 10 years and to pay a fine of

Rs.50,000/- for the offence under section 376(1) IPC, rigorous

imprisonment for 5 years and to pay a fine of Rs.20,000/- for the offence

under section 366 IPC, apart from rigorous imprisonment for 1 year for

the offence under section 506(ii) IPC. Compensation to the victim under the

victim compensation scheme was also directed to be paid by the trial court.

3. The prosecution alleged that the accused with an intention to

kidnap and rape a minor girl, had, on 05.09.2010 at 3 pm, kidnapped

the victim, while she was on her way home after buying lemon from a

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shop, and raped her after dragging her to a nearby fallow land and

thereby committed the offences alleged.

4. The prosecution, in a bid to prove its case, examined PW1 to

PW15 and marked Ext.P1 to Ext.P17 apart from MO1 to MO10, while the

defence marked Ext.D1 and Ext.D1(a). After examining the prosecution

evidence, the trial court concluded that the accused after kidnapping the

13 year old victim on 05.09.2010, raped her and thereby committed the

offences alleged.

5. The learned counsel for the appellant contended that the

prosecution had failed to prove its case beyond reasonable doubt and

that the material evidence did not justify the allegation of rape as there

was no rupture of the hymen or any injuries on the private parts of the

victim. It was also submitted that the investigating officer had filed a

report to alter the charge framed from section 376 IPC to section 511 of

376 IPC and thereafter the final report was filed only for those offences

and the trial court failed to take into consideration the said report, while

finding the accused guilty for the offence punishable under section 376

IPC. Learned counsel further submitted that the trial court also failed to

consider that the place of incident was in a locality where there were

numerous persons and none of them were examined, which itself

indicates the falsity of the prosecution case. It was finally submitted that

kidnapping the victim for the purpose of sexual intercourse had not been

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proved by the prosecution as required by law and therefore the accused

could not have been convicted for the said offence as well.

6. The learned Public Prosecutor on the other hand submitted that

the prosecution had proved beyond reasonable doubt the offence

committed by the accused and therefore the same does not warrant any

interference. It was further submitted that the medical evidence proved

that there was actual commission of rape, which cannot be regarded as

only an attempt to commit rape and hence, the impugned judgment

does not warrant any interference. The learned Prosecutor also pointed

out that despite the final report only alleging section 511 of section 376

IPC, the trial court had framed the charge under section 376 IPC and

hence the contention of the accused is not legally tenable.

7. I have considered the rival submissions and have also perused

the trial court records.

8. At the outset itself, it is appropriate to deal with the contention

regarding the charge under section 376 framed by the trial court instead

of section 511 of section 376 IPC charged in the final report. It is

significant to note that the Code has not restricted the power of the

court to frame charges for any offence if such offence is made out from

the records gathered during investigation or during the course of trial.

Section 228 of the Cr.P.C deals with framing of charge before a Sessions

Court. The words used in S.228 is if the Judge is of the opinion that

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there is ground for presuming that the "accused has committed an

offence" and not "the accused has committed an offence mentioned in

the final report". The words used in the provision conveys the scope of

the power of court to frame charges. This Court had, in the decision in

Johnkutty M.V. v. State of Kerala [2024 (2) KHC 397] considered a

similar issue on hand and held as follows:

"13. Nowhere in the Code is there any provision that restricts the power of the Court to frame charges for any offence, provided that the offence is made out from the records gathered by the prosecution. The terminology used in S.228 and S.240 CrPC is "if the court is of the opinion that there is ground for presuming that the accused has committed an offence" and not "the accused has committed an offence mentioned in the final report". This distinction is significant and reflects the unfettered power of the court to frame charges for any of the offence made out from the records. Such power can be utilized to frame charges not only for those offences mentioned in the final report but also for offences not referred to in the final report. The conferment of such power is essential for the administration of criminal justice, as otherwise, the investigating officer will be the sole repository of the power to determine what offences must be charged against an accused.

14. In this context, reference to S.216 CrPC which enables a court to alter or add to any charge at any time before judgment is pronounced, is also relevant. The power to add or alter a charge is also a comprehensive power. An improper or erroneous charge can also be corrected under S.216 CrPC by reframing it properly.

15. In the decision in Anand Prakash Sinha @ Anand Sinha v. State of Haryana, 2016 (6) SCC 105, it was observed that if the Court has not framed a charge despite the material on record, it has the jurisdiction to add a charge or even to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. The Court went on to hold that under S.216 CrPC the charges already framed can be altered even before evidence

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has been let in.

16. Further in the decision in Central Bureau of Investigation v. Karimullah Osan Khan, 2014 (11) SCC 538 it was observed that S.216 CrPC gives considerable power to the trial court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add to any charge, subject to the conditions mentioned therein. It was further held that the expressions' 'at anytime' and 'before the judgment is pronounced' would indicate that the power is very wide and can be exercised in appropriate cases, in the interest of justice, but at the same time, the court should also see that its orders would not cause any prejudice to the accused.

17. It is also relevant to refer to the judgment in P. Kartikalakshmi v. Sri. Ganesh and Another, 2017 (3) SCC 347 wherein this question came up for consideration, and the court held that the power under S.216 is vested exclusively on the court and it is an enabling provision to exercise power under contingencies which comes to its knowledge.

18. Thus, it is evident that the power of the court to alter or add any charge is unlimited and unrestrained, which can be done at any time before the judgment is pronounced. When there are materials available before the court to frame a charge or add or alter the charge for different offences other than those for which cognizance was taken, the court is not only entitled but is bound to do so."

9. In view of the above, framing of charge under section 376 IPC

by the trial court, notwithstanding the final report containing only a

charge under section 511 of 376 IPC, cannot be said to be without

authority.

10. PW1 is the victim. She was alleged to be aged only 12 years as

on the date of incident, with her date of birth stated to be 10.07.1998.

According to the victim, on 05.09.2010, while she was returning home

after buying lemons from a nearby shop, the accused grabbed her left

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hand and forcibly took her to a vacant field nearby. The accused

thereafter, disrobed the victim and laid himself on top of her. The victim

also deposed that when the accused pressed his genitals onto hers, she

bit his hands and started shouting, when he gagged her mouth and

threatened to kill her. The deposition of PW1 further reveals that after

the accused went away, she put on her dress and went home and

complained to her maternal aunt who in turn informed her mother. The

victim's mother along with her sister, took the victim to the Taluk

Hospital where she was admitted and examined by a Doctor while an

Uncle went to inform the police.

11. PW2, a local resident, deposed that on 05.09.2010, while she

was taking water from a public tap near the road side, she saw PW1

crying and on enquiry with her, she communicated that the accused had

abused her. PW3 is the owner of the shop from where the victim had

purchased lemons and according to him, at around 3.30 pm on

05.09.2010, the victim had come to her shop to buy lemons. PW4 is the

Headmaster of the school where the victim was studying, through whom,

Ext.P2 certificate was marked in order to prove the date of birth of the

victim. He deposed that the date of birth certificate Ext.P2, was issued

based on the entries in the admission register. PW7, the Aunt of the

victim, deposed that, on 05.09.2010 her brother was getting married

and that she had sent the victim to buy lemons. PW8 is the mother of

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the victim who identified the accused and deposed that on 05.09.2010

her brother was getting married and when the victim returned back after

purchasing lemons, she was crying aloud and when enquired with her, it

was informed that the accused took her to a vacant field and raped her.

PW15 is the Doctor who had examined the victim. According to her, on

05.09.2010, itself at around 6.55 pm, she examined the victim in the

crime who was brought by a woman Police Constable with a request

from the Circle Inspector of Police of North Paravur Police station, soaked

with mud and was complaining of pain while walking. The Doctor also

deposed that, on examination, though no general injuries were noted,

she found a one centimetre congested area on the genitals of the victim

at the inner side of labia majora. She also gave evidence that though the

hymen of the victim was intact there was an injury on the labia majora

and that she had issued Ext.P17 certificate.

12. The evidence adduced by the victim is unambiguous that,

while she was returning home after purchasing lemons, the accused

grabbed her and forcibly took her to a nearby field and raped her. The

medical evidence revealed that there were injuries on the labia majora.

The evidence of PW15 and her report Ext.P17 as noted above, revealed

that there was a one centimeter congestion on the labia majora. Though

the defence had raised a contention that the said congestion could have

been caused due to itching or scratching, considering the nature of

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evidence adduced by the prosecution especially through the victim, her

mother and that of the Doctor, this Court is of the view that the injury

on the labia majora of the victim was caused by the act of the accused

while raping the victim.

13. The above conclusion is fortified by the fact that the incident

allegedly occurred at around 3.30 pm on 05.09.2010 and the victim on

reaching her house, immediately complained to her maternal aunt and

her mother, who took her to the hospital and she was subjected to

medical examination on the same day at around 6.30 pm. The FIR was

registered at 5.45 pm on 05.09.2010 itself. There is thus no delay either

in the registration of the FIR or in the examination of the victim. Though

the hymen of the victim was intact, it is not necessary that in cases

where rape is alleged, the medical evidence must prove that the hymen

was torn. The law does not require penetration to a particular extent into

the vagina to conclude commission of rape. Penetration cannot be

measured in millilitres or centimetres and penetration even to the

minutest extent will satisfy the requirement of rape under law.

14. Penile entry into the vagina in its entirety, is not essential to

constitute rape. An access to the vagina, without there being any entry

of the penis fully into the vagina would also amount to rape, if the penis

penetrates into any of the external part of the female genital organ, such

as vulva or labia majora. In Tarkeshwar Sahu v. State of Bihar

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[(2006) 8 SCC 560], wherein also, it was explained that penetration of

the male genital organ into the labia majora or the vulva, with or without

any emission of semen or even an attempt at penetration into the

private part of the victim completely, partially or slightly would make out

the offence under S.376 IPC. Reference to the decisions in Kunjumon v.

State of Kerala [2011 (4) KHC 72] wherein it was observed that for

constituting penetration even a vaginal access by a male organ is

enough and even a slightest penetration into vulva or labia majora would

constitute "rape", although there would be no vaginal penetration in such

cases. Reference to the decisions in Raveendran V.S v. Deputy

Superintendent of Police [2025 KER 14285], Chenthamara v. State

of Kerala [2008 (4) KLT 290] is also appropriate in this context.

15. The amendment of 2013 bringing an explanation that

penetration into the labia majora will constitute penetration of the vagina

is only explaining what had already been laid down by the Supreme

Court and other High Courts. Therefore, though the incident in the

present case occurred prior to the amendment of 2013, still the offence

of rape is attracted when penetration into the labia majora is proved.

Similarly, the absence of injuries by itself cannot be a reason to doubt

the prosecution case and the main determiner in an offence of rape is

the evidence of the victim. In the instant case, PW15 has noticed a

congestion on the labia majora, which is an injury indicative of rape

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itself.

16. In this context, it needs to be mentioned that the prosecution

witnesses have stated that they went to the hospital straight from the

house, while the doctor deposed that a woman police constable had

accompanied the victim to the hospital. As noted earlier, the FIR was

registered at 5.45 pm while the doctor examined the victim at 6.30 pm.

There is a minor inconsistency regarding whether the victim first went to

the police station or the hospital. However, the said inconsistency being

insignificant, especially since the time of incident and the registration of

FIR and the examination by the doctor, all happened within a matter of

two and half hours, the same cannot create any doubt on the

prosecution case.

17. On an appreciation of the evidence of the victim, there is no

reason to doubt the veracity of her deposition. When the evidence of the

prosecutrix inspires confidence of the court, no corroboration is

necessary to enter a finding of guilt of the accused. In the decision in

Bhimapa Chandappa Hosamani and Others v. State of Karnataka

[(2006) 11 SCC 323], it has been held that on the basis of the testimony

of a single eye witness a conviction may be recorded, if the Court is

satisfied that the testimony of the solitary eye witness is of such sterling

quality that the Court finds it safe to base a conviction solely on the

testimony of that witness. In doing so the Court must test the credibility

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of the witness by reference to the quality of his evidence. The evidence

must be free of any blemish or suspicion, must impress the Court as

wholly truthful, must appear to be natural and so convincing that the

Court has no hesitation in recording a conviction solely on the basis of

the testimony of a single witness.

18. Thus, it needs no restatement that the evidence of the victim of

rape must be given the same value as that of an injured witness and it is

legally tenable to base a conviction on the solitary testimony of the

prosecutrix. In the decision in State of Punjab v. Gurmit Singh and

Others, [(1996) 2 SCC 384], the Supreme Court observed that:

"..........If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."

19. As regards the question of the age of the victim, the incident

occurred prior to the coming into force of the POCSO Act, that too at a

time when the age of consent was 16. However, the evidence adduced

by the prosecution in the form of Ext. P2, unambiguously proves that the

victim was born on 10.07.1998. No serious challenge was raised by the

appellant against the date of birth as proved through PW4. Thus it is

clear that the victim was less than 16 years of age as on 05.09.2010.

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20. In view of the above, this Court finds no perversity in the

conclusions arrived at by the trial court. The conviction and sentence

imposed on the accused by the impugned judgment in S.C. No.562 of

2012 on the files of the Additional Sessions Court (For the trial of cases