Suresh @ Kadakam's conviction under Section 376 IPC replaced with Section 511 read with Section 376, reducing sentence to five years
In a significant judgment, the Kerala High Court has modified the conviction of Suresh @ Kadakam, originally sentenced for the rape of a two-year-old girl, to attempted rape under Section 511 read with Section 376 of the Indian Penal Code (IPC). The modification comes after the court found that the essential element of penetration, necessary for a rape conviction under Section 376 IPC prior to the 2013 amendment, was not established.
The judgment delivered by Justice A. Badharudeen on May 18, 2026, revisited the evidence presented in the trial court and concluded that while there was evidence of overt acts indicating an attempt to rape, the requirement of penetration was absent. The court reduced Suresh's sentence from ten years to five years of rigorous imprisonment and imposed a fine of Rs. 50,000.
The case revolves around the incident from October 9, 2005, where the accused allegedly attempted to rape a minor victim. The prosecution's case was supported by testimonies from witnesses, including the victim's mother and a friend, Stella, who noticed suspicious behavior and the absence of the child's undergarments. Medical examination revealed contusions around the vaginal orifice, although the hymen was intact, leading the court to determine there was no penetration.
The High Court's decision was influenced by precedents set by the Supreme Court, which emphasized that penetration is a sine qua non for rape under the unamended Section 375 IPC. The judgment also referenced the principle of res gestae under Section 6 of the Evidence Act, validating the immediate statements made by the minor victim to her mother.
In its verdict, the High Court highlighted the distinction between preparation and attempt, underscoring that an attempt involves overt acts leading towards the commission of the offence, even if the crime is not consummated. The court emphasized the moral guilt associated with such attempts, warranting penal consequences.
The modified sentence also includes provisions for compensation, with Rs. 30,000 from the fine amount to be released to the victim. The court ordered the accused to appear before the Special Court to undergo the modified sentence, failing which the execution of the sentence would proceed.
Bottom line:-
Rape - For an offence under Section 376 IPC prior to its amendment in 2013, penetration is sine qua non for rape - Absence of penetration but presence of other overt acts constitutes an attempt to commit rape under Section 511 read with Section 376 IPC.
Statutory provision(s): Sections 375, 376, 511 of Indian Penal Code, Section 6 of Evidence Act, Section 428, 357(1)(b) of Code of Criminal Procedure.
Suresh @ Kadakam v. State of Kerala, (Kerala) : Law Finder Doc id # 2900807
