Court holds that in accused's appeal, it cannot suo motu enhance sentence or convict on graver charge; directs Sessions Court to reconsider evidence and deliver fresh judgment
In a significant judgment dated 22nd September 2026, the Kerala High Court, led by Justice A. Badharudeen, quashed the conviction and sentence imposed on the appellant, Biju, in a sexual assault case and ordered a retrial. The appellant had been convicted by the Sessions Court, Thodupuzha, under Sections 323 (voluntarily causing hurt), 354 (outraging modesty), and 452 (trespass) of the Indian Penal Code (IPC) for allegedly trespassing into the victim's house and attempting to commit rape.
The High Court scrutinized the evidence, especially the testimony of the victim (PW1), who narrated being attacked by the accused while alone at home. She detailed that the accused forcibly entered her house, attempted to remove her clothes, kissed her, and caused injuries while carrying a knife. Despite the victim's direct account, the Sessions Court had disbelieved parts of her testimony by relying on omissions in statements given to relatives immediately after the incident. The High Court found this selective disbelieving of the victim's evidence unjustified, especially since the law permits conviction based solely on the victim's credible testimony in sexual assault cases.
The Public Prosecutor contended that the evidence also supported the charge of attempt to commit rape under Section 511 read with Section 376 IPC, a graver offence than those under which the appellant was convicted. However, the prosecution had not filed any appeal or revision challenging the Sessions Court's findings.
The Kerala High Court referred to the Supreme Court's ruling in Nagarajan v. State of Tamil Nadu (2025), which clarified that when an appeal is filed solely by the accused, the High Court cannot enhance the sentence or convict on a graver charge suo motu without a corresponding appeal or revision by the State, victim, or complainant. This principle bars the High Court from acting as a revisional court to increase punishment in such appeals. Instead, the High Court may set aside the conviction and sentence and order retrial or reconsideration.
Applying this law, the High Court noted that the Sessions Court had failed to consider the entirety of evidence and improperly disbelieved the victim's testimony. Consequently, the conviction under Sections 323, 354, and 452 IPC was set aside, and the case was remitted to the Sessions Court for a fresh hearing on merits based on the evidence already recorded. The trial would proceed from the stage of final hearing and judgment without disturbing the prior evidence.
The Court directed the accused to surrender before the Sessions Court by 22nd October 2026 and clarified that the interim bail granted would stand cancelled at 11:01 a.m. on that date, with liberty to apply for regular bail thereafter. The Sessions Judge was instructed to complete the retrial within six weeks of receiving the judgment.
This ruling emphasizes the High Court's limited revisional powers in appeals filed only by accused persons and reinforces the sanctity of victim testimony in sexual assault cases. It also highlights procedural safeguards preventing courts from enhancing sentences without proper appeals by prosecution or victims, thereby upholding principles of fairness in criminal appellate jurisprudence.
Bottom Line:
In an appeal filed by the accused, the High Court cannot suo motu convert the case into one for conviction on a graver charge or enhancement of sentence; however, where the trial court has not properly appreciated the entire evidence in a sexual assault case, the appellate court may set aside the conviction and sentence and remit the matter for reconsideration/retrial from the stage of hearing on merits.
Statutory provision(s):
Indian Penal Code Sections 323, 354, 452, 511 read with 376; Criminal Procedure Code Sections 386, 397, 401
Biju v. State of Kerala, (Kerala) : Law Finder Doc Id # 2999267
