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IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. Narayana Pisharadi, J.
Robin Mathew – Appellant
Versus
State Of Kerala, Represented By the Public Prosecutor And Ors. – Respondents
CRL.A NO. 401 OF 2019
Decided On : 01-12-2021
Protection of Children from Sexual Offences Act, 2012 – Sections 5(f) and 5(j)(ii) read with Section 6 – Section 3(a) read with Section 4 - Indian Penal Code, 1860 - Sections 376(2)(f), 506(1), 201 and 120B- Offences of penetrative sexual assault and rape on a teenage girl of the parish – Conviction - whether the age of the victim has been proved- Whether the prosecution could legally prove that the date of birth of PW1 is 17.11.1999.
Finding of the Court:
Section 376(2)(f) of the Indian Penal Code is attracted when a person who being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman. Merely for the reason that the appellant/accused was the priest/vicar of the local church, it cannot be found that he had held any position of trust or authority towards the victim girl. While finding the appellant/accused not guilty of the offence under Section 5(p) of the POCSO Act, the trial court has made a categorical finding that the appellant/accused cannot be regarded as a person in position of trust or authority of the victim. The State has not challenged the acquittal of the appellant/accused of the offence under Section 5(p) of the POCSO Act. In such circumstances, in the given facts of the present case, he cannot be found to be a person who was holding any position of trust or authority towards the victim girl so as to attract the offence punishable under Section 376(2)(f) of the Indian Penal Code. Conviction of the appellant/accused by the trial court under Section 376(2)(f) of the Indian Penal Code has to be altered to conviction under Section 376(1) of the Indian Penal Code - Section 5(f) of the POCSO Act provides the punishment to a person who being on the management or staff of an educational institution or religious institution and who commits penetrative sexual assault on a child in that institution. The offence under Section 5(f) of the POCSO Act is attracted to the act committed by the appellant/accused. Conviction of the appellant/accused under Section 5(f) of the POCSO Act is liable to be confirmed.
Result: appeal is allowed in part
JUDGMENT :
The appellant was the Vicar of St.Sebastian Church at Kottiyoor in Kannur District. He was indicted for committing the offences of penetrative sexual assault and rape on a teenage girl of the parish. The trial court convicted and sentenced him for the offences punishable under Section 376(2)(f) of the Indian Penal Code and also under Section 3(a) read with Section 4 and Sections 5(f) and 5(j)(ii) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act').
2. There were altogether ten accused in the case. The proceedings against Accused 3 to 5 were quashed by the Supreme Court as per the judgment in Sr.Tessy Jose v. State of Kerala (AIR 2018 SC 4654). As per the impugned judgment, the trial court has acquitted all other accused except the appellant, who was the first accused in the case. The State has not filed any appeal challenging the acquittal of the accused in the case.
3. In the absence of any other accused in picture now, the appellant herein shall be, for the sake of convenience, referred to also as 'the accused'.
4. The prosecution case, as against the appellant/accused, can be briefly stated as follows:
The accused was the Vicar of the St.Sebastian Church, Kottiyoor. He was also the Manager of the Kottiyoor I.J.M Higher Secondary School. The victim girl used to go to the church to attend the Holy Mass. After the Holy Mass, she used to do computer work in the room attached to the church in which the accused was residing. When she was in his room, he used to sexually assault her. He had warned her not to disclose the matter to any one. One day in the month of May, 2016, the accused induced the victim girl to come to his room and he committed rape and penetrative sexual assault on her. As a result, the victim girl became pregnant. She gave birth to a male child on 07.02.2017.
5. It appears that initially an attempt was made to hush up the whole matter. However, the matter came to the notice of the Child Welfare Committee and the police was informed. On 26.02.2017, the Sub Inspector (PW23) of Kannur Vanitha Police Station reached the house of the victim girl and recorded her statement (Ext.P2). At that time, the victim girl told the police that her own father had committed rape on her and that the father of her child was her own father.
6. On the basis of Ext.P2 statement, the SHO of Kelakam police station (PW24) registered Ext.P28 F.I.R against the father of the victim girl. The investigation revealed that it was not the father of the victim but it was the accused who had sexually assaulted her. PW37, the Inspector of Police, Peravoor conducted the investigation of the case. After completing the investigation, PW38 Inspector of Police, filed charge-sheet against the ten accused persons. The charges levelled against the appellant/accused were for the offences punishable under Section 3(a) read with Section 4, Section 5(f) read with Section 6, Section 5(j)(ii) read with Section 6, Section 5(p) read with Section 6, Section 7 read with Section 8, Section 9(f) read with Section 10, Section 16 read with Section 17 of the POCSO Act and also under Sections 376(2)(f), 506(1), 201 and 120B of the Indian Penal Code and also under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
7. The trial court framed charge against the accused (A1) for the offences punishable under Section 3(a) read with Section 4, Section 5(f) read with Section 6, Section 5(j)(iii) read with Section 6, Section 5(p) read with Section 6, Section 7 read with Section 8, Section 9(f) read with Section 10 of the POCSO Act and also under Sections 376(2)(f), 506(1), 201 and 120B of the Indian Penal Code and also under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The accused (A1) pleaded not guilty and he claimed to be tried.
8. During the trial of the case, the prosecution examined the witnesses PW1 to PW38 and marked Exts.P1 to P80 and Ext.C1 documents
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