Point of Law: Offence of Rape - Sentence modified - Accused was acquitted of charge under provisions of un-amended POCSO Act, for no credible evidence being available as to exact date of commission and definitely nothing to prove such commission after date on which that Act came into force - Charge that remains against accused is only of Section 377 IPC confirmed - Petitioner’s “residual doubt” claim is that States must permit capital sentencing bodies to demand proof of guilt to “an absolute certainty” before imposing death sentence.

JUDGMENT :

Vinod Chandran, J.

'Gamekeeper turns poacher' is how the Hon'ble Supreme Court described instances of rape on children by their own guardians (State of Himachal Pradesh v. Asha Ram, (2005) 13 SCC 766). In the instant case, the victim is a young girl and the accused is her father, a clear case of 'Protector turning predator' as submitted by the learned Prosecutor.

2. The trial court convicted the accused based on the evidence led before it by way of fifteen exhibits and eleven witnesses. The defence marked one exhibit as a contradiction from the statement of PW4. Separate sentences for imprisonment for life under Sections 376 and 377 IPC and a fine amount of Rs.25,000/-each, with default sentence was imposed on the accused. The sentence was also ordered to be run concurrently. We heard the learned Counsel Lavaraj M.G. for the appellant and Smt. Ambika Devi, Special Government Pleader (Atrocities against women and children) appearing for the State.

3. The learned Counsel for the appellant submits that the victim does not have a consistent case and this reveals the falsity of the allegations. It is pointed out that the mother and brother of the victim turned hostile. There is gross delay in the registration of the crime. The child had an affair with another person, which was objected to by the father and the complaint raised was a mere backlash. Without admitting the allegations or accepting the evidence let in, the learned Counsel would also pray for indulgence insofar as the sentences, especially since the allegation of rape is an embellishment in the evidence before court. The appellant relied on Santosh Prasad @ Santosh Kumar v. State of Bihar, (2020) 3 SCC 443 to argue that when there are material contradictions in the evidence led by the prosecution and there is a delay in lodging an FIR, a conviction cannot be sustained. Bhudeb Uchai v. State of Tripura, 2020 KHC 4378 of the Tripura High Court, State of Uttarakhand v. Subash, 2019 KHC 5450 and Indra Mani Thapliyal v. State of Uttarakhand, 2013 KHC 3138; both Division Bench decisions of the Uttarakhand High Court, were relied on to set aside the conviction and alternatively to argue for mitigation insofar as the sentence is concerned.

4. The learned Special Government Pleader on the other hand, would caution us, relying on Asha Ram, from showing any indulgence to such depraved people, who turn their lascivious eye on their children, that too of tender age. It is also pointed out that the legislature keeping in mind the increase of such crimes of depravity, brought in comprehensive amendments bringing various sexual acts under the definition of rape and substantially enhancing the punishment, to even death in cases of abject depravity; interalia of minor children being subjected to rape by their guardians. Ravi v. State of Maharashtra, (2019) 9 SCC 622 declared that a purposive interpretation of the penal provisions has to be made, especially keeping in mind the subsequent amendments brought in by the legislature, even if such offences are committed before such amendments. It is pointed out that the mother was only shielding the father especially since she had signed on the FIS given by the daughter. Though in the FIS only digital penetration was alleged by the victim; before the Doctor, she alleged penile penetration also. There is no delay in making the complaint since the child had put forth the threat of suicide levelled by her father, as having dissuaded her from disclosure. She also spoke of the crime to her family and there is no challenge to the explanation, in the cross-examination. The explanation proffered, if not challenged, there can be no ground raised on that aspect as has been held in State of U.P. v. Nahar Singh, (1998) 3 SCC 561. Yanab Sheikh v. State of W.B., (2013) 6 SCC 428 is also relied on.

5. Ext.P4 is the FIS given by PW4 on 12.02.2013. PW4's family moved into the present accommodation a month back, and before that, they were at a different rent