[Cites 5, Cited by 0]

Kerala High Court

Xxxxxx vs Mr. Gopalan K.T on 11 December, 2025

Author: A.K.Jayasankaran Nambiar

Bench: A.K.Jayasankaran Nambiar

                                                               2025:KER:95873


              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
      THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                  &
             THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 11TH DAY OF DECEMBER 2025/20TH AGRAHAYANA, 1947
                        CRA(V) NO. 81 OF 2025

      CRIME NO.51/2019 OF BEDAKOM POLICE STATION, KASARGOD

          AGAINST THE ORDER DATED 08.07.2025 IN SC NO.257 OF
2019 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS
TRIBUNAL/RENT CONTROL APPELLATE AUTHORITY, KASARAGOD



APPELLANT/DEFACTO COMPLAINANT (VICTIM):


             XXXXXXXXXX
             XXXXXXXXXX XXXXXXXXXX

             BY ADV SMT.SHERLY MOL THOMAS


RESPONDENTS/ACCUSED:

      1      MR. GOPALAN K.T
             AGED 51 YEARS
             S/O MALINKAN, NELLITHAVU ,KANHANADUKKAM,
             KUTTIKKAL VILLAGE, KASARAGOD, PIN - 671541

      2      STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA COCHIN, PIN - 682031

             BY ADV. SMT.SHEEBA THOMAS, P.P.


      THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING COME UP
FOR   ADMISSION    ON   11.12.2025,   THE   COURT   ON   THE     SAME   DAY
DELIVERED THE FOLLOWING:
 CRA(V)No. 81 of 2025                :: 2 ::



                                                                2025:KER:95873

                                                                 "C.R."
                              JUDGMENT

Jobin Sebastian, J.

This appeal has been filed by the victim in S.C. No. 257 of 2019

on the file of the Sessions Court, Kasaragod, under the proviso to

Section 413 of the Bharatiya Nagarik Suraksha Sanhita, 2023,

challenging the judgment of acquittal passed in the said case.

2. The crux of the prosecution's case is as follows:

On 3/12/2018, at approximately 8:30 p.m., while PW1, who

is a member of a Scheduled Caste, was waiting for her husband in

front of the house of one Viswambharan, the accused, belonging to a

non-Scheduled Caste/Scheduled Tribe (non-SC/ST) community,

dragged her to a rocky place at Arthootippara in Kuttikkole Village

and committed rape on her, knowingly that she was a member of the

Scheduled Tribe community. Furthermore, after committing the

offence, the accused threatened to cause her death if she disclosed

the incident to anybody.

3. When this appeal came up for admission, upon perusal of

the impugned judgment, we entertained a doubt as to whether the

appeal requires admission or is liable to be summarily dismissed.

Accordingly, we heard Smt. Sherly Mol Thomas, learned counsel for

the appellant, and Smt. Sheeba Thomas, learned Public Prosecutor, CRA(V)No. 81 of 2025 :: 3 ::

2025:KER:95873

appearing for the 2nd respondent and perused the impugned

judgment and the appeal memorandum.

4. Undisputedly, the right of a victim to file an appeal is a

statutory right. When a victim approaches the Court with an appeal

challenging a judgment of acquittal, particularly in a case involving

sexual offences, the appeal would ordinarily merit admission if there

is, at least prima facie, an arguable case in favour of the victim. Once

such an appeal is admitted, it can thereafter be dismissed only on the

merits and after calling for the records. However, while considering

the admission of a victim's appeal against an acquittal, the

inconvenience and stigma that may be caused to the accused until

the appeal is finally decided cannot be ignored. This is especially

relevant because the allegations in such cases can have a drastic

impact on the accused's family life, social standing, and even the

future of his children, if any. After having secured an order of

acquittal, if an appeal is admitted casually and notice is issued to the

accused, such proceedings may hang as a 'Damocles' sword' over his

head until the appeal is concluded.

5. It is also a matter of common experience that, on certain

occasions, allegations of sexual offences are raised with the intention

of effecting out-of-court settlements or extracting money under the

guise of compromise. At the same time, we are conscious of

instances where accused persons have been acquitted due to CRA(V)No. 81 of 2025 :: 4 ::

2025:KER:95873

improper appreciation of evidence. Thus, in matters relating to the

admission of appeals, particularly in cases involving sexual offences,

the Court must ordinarily adopt a victim-centric approach, bearing in

mind the vulnerability of victims. Nevertheless, where there is not

even prima facie materials to take a view different from the view

already taken by the trial court while acquitting the accused, the

appeal is liable to be summarily dismissed.

6. Moreover, it is to be borne in mind that the legal

yardsticks applicable to an appeal against acquittal are different

from those applicable to an appeal against conviction. Ordinarily, an

appellate court would not interfere with a judgment of acquittal

unless it is demonstrated that the trial court's view is perverse,

manifestly illegal, or grossly unjust, and that the only possible

conclusion, on the basis of the evidence on record, was that the

accused was guilty of the offence alleged. Likewise, if two views are

possible on the basis of the evidence, and the trial court has taken

one such view leading to acquittal, the appellate court would

generally refrain from substituting its own view merely because it

might have arrived at a different conclusion. (See Sanwat Singh

and Others v. State of Rajasthan (AIR 1961 SC 715), K.Gopal

Reddy v. State of Andhra Pradesh (1979) 1 SCC 355),

Chandrappa and Others v. State of Karnataka (2007) 4 SCC

415)) However, that does not mean that the appellate court cannot CRA(V)No. 81 of 2025 :: 5 ::

2025:KER:95873

reverse an erroneous acquittal. More specifically, when the

appreciation of evidence by the trial court is patently erroneous or

perverse or runs contrary to the settled principles of law, and when

the evidence on record clearly establishes the guilt of the accused,

leaving no room for any other plausible conclusion, the appellate

court is well within its power to reverse the finding of acquittal and

convict the accused.

7. Keeping in mind the above principles, and applying them to

the present case, it is evident that the sole evidence relied upon by

the prosecution to establish the occurrence of the incident is the

testimony of the alleged survivor (PW1). Upon a holistic evaluation of

her evidence, the trial court found that the solitary testimony of PW1

was neither convincing nor trustworthy and, therefore, could not

form the basis for a conviction. The trial judge assigned several

reasons to support the conclusion that her testimony lacked

credibility.

8. In the impugned judgment, it is mentioned that when the

victim of the offence was examined as PW1, she deposed that the

incident took place while she, her husband, and son were en route to

a New Year's celebration, which included her daughter's dance

performance. According to PW1, when they reached in front of the

house of one Vishambharan, her husband and son had entered the

house of the said Vishambharan to give him an amount of Rs. 500/-, CRA(V)No. 81 of 2025 :: 6 ::

2025:KER:95873

while she waited outside the gate of the said house. Then the

accused, who came there, caught hold of her hand and took her to a

nearby rocky place and raped her after undressing her. According to

PW1, after the incident, while she was walking by the side of the

road, she met her husband, and he asked "where she was till this

time". Since she was unable to reply due to fear, her husband

allegedly assaulted her in a public place and told her not to

accompany him unless she disclosed what had transpired. She was

therefore constrained to go to her paternal home, which is situated

nearby. She returned to her matrimonial home after one week, but

her husband's physical abuse persisted. It was only then that she felt

compelled to disclose the incident to her husband. Thereafter, on

26.02.2019, she gave a statement to the police regarding the

incident in this case.

9. The learned Sessions Judge, after appreciating the

evidence of PW1, found it highly suspicious that PW1 did not raise

any alarm when the accused allegedly dragged her away from the

front of Viswambharan's house, especially since her husband and son

were present inside the house at that time. Similarly, the trial court

took serious note of the fact that although PW1 met her husband

immediately after the incident and he specifically inquired about her

whereabouts, she failed to disclose the incident to him. Furthermore,

PW1's evidence indicated that her silence provoked her husband, CRA(V)No. 81 of 2025 :: 7 ::

2025:KER:95873

leading him to assault her in a public place and instruct her not to

return to his house until she disclosed the truth. We are also of the

view that the fact that even then PW1 did not disclose the incident to

her husband is a serious circumstance which favours the case of the

accused that PW1 was a consenting party to the alleged coitus. It is

true that when the court put a definite question to PW1 as to why

she did not raise any alarm, she offered an explanation that it was

because she was gagged by the accused. However, the trial court

itself entered into a finding that the said explanation is not at all

believable, as PW1 offered such an explanation only at the time of

trial, that too as a reply to a court question.

10. A perusal of the judgment further reveals that the trial

court took note of the long delay in reporting the matter to the police

and found the delay to be fatal. We are also of the view that when

there is an inordinate delay in lodging an FIR, the possibility of

deliberations, consultations and exaggerations cannot be ruled out.

However, we are not oblivious that delay in lodging the FIR in cases

involving sexual offences is generally not treated as fatal, as various

factors such as concerns regarding married life, the future of

children, and the stigma attached to the family may weigh in the

mind of the victim. In the present case, the explanation offered by

the victim (PW1) for the delay was that the accused had threatened

to kill her if she disclosed the incident to anyone. Nevertheless, the CRA(V)No. 81 of 2025 :: 8 ::

2025:KER:95873

trial court recorded a finding that the victim did not mention this

threat when her statement was recorded by the learned Magistrate

under Section 164 of the Code of Criminal Procedure (Cr.P.C.).

Instead, she stated to the Magistrate that the accused threatened to

commit suicide if she disclosed the matter. We recognize that the

question of whether these omissions and contradictions are fully

proven can only be determined after verifying the statements of the

relevant witnesses before the court. However, while considering the

delay in lodging the FIR, it cannot be ignored that PW1, the victim, is

a mature, married woman with two children. Therefore, in the

specific facts and circumstances of the present case, we find no

reason to disagree with the finding of the trial court that the delay in

lodging the FIR is fatal.

11. In the impugned judgment, it is further mentioned that

although the prosecution alleged the accused had dragged the victim

to a rocky area and committed rape upon her, there was no evidence

to show she had sustained any physical injury in the incident. This

particular fact was taken note of by the trial judge to enter into a

conclusion that she was also a consenting party to the incident.

Likewise, the trial court further found that no tear or damage

occurred to the dress materials worn by the victim; this absence of

damage, particularly when the alleged rape was committed in a

rocky area, also raised serious doubt regarding the veracity of the CRA(V)No. 81 of 2025 :: 9 ::

2025:KER:95873

testimony of PW1 concerning forceful sexual intercourse. In the

light of these aspects, we are of the considered view that the learned

trial judge has assigned sufficient reasons for acquitting the accused.

We also believe that there is no necessity to call for the records of

the case since, even if we were to re-appreciate the evidence in this

case, the view taken by the trial court cannot be said to be patently

erroneous, perverse or contrary to the settled principles of law.

12. As already noted, this appeal has been filed against an

order of acquittal. An interference in such an order cannot be done

in a casual manner. As there is already an order of acquittal, a prima

facie presumption of innocence is available in favour of the accused.

Interference with an order of acquittal is warranted only when it is

shown that the view taken by the trial court is perverse, illegal, or

grossly unjust. In the present case, the view taken by the trial court

cannot be said to be perverse or unreasonable. We also find that

although the Bharatiya Nagarik Suraksha Sanhita does not contain

any specific provision for the summary dismissal of an appeal filed by

a victim challenging an order of acquittal, the provision for summary

dismissal of appeals under Section 425 BNSS will apply mutatis

mutandis to the summary dismissal of an appeal filed by a victim

under the proviso to Section 413 BNSS.

In the result, we are of the view that there is not even prima

facie material to show that the victim has an arguable case in her CRA(V)No. 81 of 2025 :: 10 ::

2025:KER:95873

favour, and the present appeal challenging the judgment of acquittal

is liable to be summarily dismissed. We therefore dismiss the appeal

in limine.