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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.VINOD CHANDRAN, M.R.ANITHA, JJ.
Rajan K.C., C.No.874/15, Central Prison, Kannur – Appellant
Versus
State Of Kerala – Respondent
Crl.A No. 50 of 2017
Decided on : 25-06-2021
Indian Penal Code, 1860 – S.376(2)(h),(i)and(m) and S.506(2) – Protection of Children from Sexual Offences Act, 2012 – S.5(j)(ii),(l),(q) r/w S.6, S. 42 - Subjecting a minor girl of 14 years to repeated rape by reason of which she became pregnant – Appeal against conviction and sentence – Testimony of prosecutrix – No consent of victim – Scientific evidence by way of the DNA Examination, which scientific evidence proves that the accused is the biological father of the child born to the victim
Finding of the Court:
violence to a minor child when she is impregnated by an adult, four times her age, is inconceivable, inexpressible and inexplicable. The injuries in such crimes often are not to the body but to the mind. The act of passion for the accused ends up as an act of revulsion for the victim; the scars of which no physician can cure nor passing years erase. There is also the sense of loss in having been forced to give the child in adoption, for whatever reason and the crime committed on the infant, who came unsolicited into this cruel world. We find no reason to offer mitigation insofar as the sentence is concerned – Incidents of abuse which led to the pregnancy of PW1 even as per her deposition happened first in 2013 prior to Onam and twice later with two days intervening. Though she was impregnated in one of such incidents it cannot be said that the accused had knowledge of the pregnancy when he repeated the abuse.
Result: Appeal partly allowed
Key Points: - The accused was convicted under IPC S.376(2)(h),(i),(m) and S.506(2) and under POCSO Act S.5(j)(ii),(l),(q) r/w S.6; sentence upheld with modifications as discussed (including life imprisonment for certain counts) (!) (!) (!) (!) (!) - Ext.P2 (birth certificate photocopy) was examined; Ext.P6 (school admission extract) used to determine age; court held Ext.P6 supporting minor status and that Ext.P2 photocopy is not valid primary/secondary evidence under S.76-S.65; however, Ext.P6 along with oral testimony suffices to establish age below 16 (!) (!) (!) - The court found non-compliance with S.313 (examination of the accused on incriminating material) to be negligence but not necessarily prejudicial in this case; upheld conviction; discussed requirement to demonstrate prejudice for reversal (!) (!)
JUDGMENT :
Vinod Chandran, J.
A permanently scarred teen aged-mother and an infant forced into adoption are the net result of the crime, which is the subject matter of the above appeal against conviction and sentence of its perpetrator. The victim and her orphaned child are destined to live with this pall of shame, on this miserable world where lecherous adults prey on innocent children.
2. The accused-appellant was tried and convicted for offences punishable under S.376(2)(h),(i)and(m) and S.506(2) of IPC and S.5(j)(ii),(l),(q) r/w S.6 of the Protection of Children from Sexual Offences Act, 2012. He has been awarded the maximum sentence of imprisonment of life which extends to the reminder of his natural life under the offences alleged under S.376 and an imprisonment of five years under S.506(2) and a fine of Rs.1 lakh, with a default sentence. By virtue of S. 42 of POCSO Act no separate sentence is awarded under the offences on which he has been convicted under that Act.
3. The allegation against the appellant found against him by the Sessions Court was that he subjected a minor girl of 14 years to repeated rape by reason of which she became pregnant; with which knowledge he continued the atrocities thus attracting the offences alleged against him. The learned Sessions Judge found that the evidence of the witnesses stand unchallenged and the version of the prosecutrix is totally believable. There is no consent on the part of the prosecutrix even remotely suggested, which in any event is immaterial for reason of the age of the prosecutrix who was below 16 years at the time when the offence was committed. The prosecutrix had not immediately spoken of the incident due to the intimidation by the accused and also fear of parental repercussion. There is further scientific evidence by way of the DNA Examination, which scientific evidence proves that the accused is the biological father of the child born to the victim.
4. Sri. Ranjith P Marar learned Counsel appearing for the accused argued that there was no worthy proof of the victim being a minor below 16 years of age. The certificates produced to prove date of birth do not stand the test of S.76 of the Indian Evidence Act and it cannot even be called a secondary evidence as contemplated in S.63 of the Evidence Act. The learned Counsel relies on 2020 KHC 2271 Reju v. State of Kerala wherein the copy of the extract of the School Register was found to be insufficient. Reliance is also placed on 2016(16) SCC 483 Rakesh Mohindra v. Anita Beri. It is argued that there is nothing to show that the accused had committed rape on the victim with the knowledge that she is pregnant. For arguments sake, even if the prosecution case of repeated instances of sexual act is believed, it only reveals the consent of the victim; which consent assumes significance for reason of no valid proof of age having been proffered. It is pointed out that the incriminating circumstances of Ext.P14 test result was never put to the accused in the questioning under S. 313. Such evidence has to be totally eschewed going by the dictum in 2009(6) SCC 595 Ranvir Yadav v. State of Bihar and 2015 (1) SCC 496 Nar Singh vs. State of Haryana. Last but not the least the learned Counsel would argue for a reduction in sentence especially considering the age of the accused and the fact that there was no violent act complained of by the victim and no injury caused to her. The learned Counsel relies on 2020 KHC 5318 (Chanchal Dev. V State of Tripura) wherein the imprisonment of life was reduced to RI of ten years considering the fact that the accused is a married man with a family to support and had no criminal antecedents. The learned Counsel also relies on 2013(11)SCC 382 (Soman v. State of Kerala) for mitigation on sentence.
5. Smt.Ambika Devi, Special G.P(Atrocities against Women and Children) at the outset points out that in the year 2018 the provision under S.376 had been amended by the legislature importing more rigour in the pu
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