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IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. NARAYANA PISHARADI, J.
Unnikrishnan C.No.2552, S/o.Koru – Appellant
Versus
State Of Kerala – Respondent
Crl.A No. 242 of 2019
Decided on : 11-10-2021
RAPE - Sexual Assault by Father on Minor Daughter - IPC 376, IPC 506, POCSO Act 2012 - The court found the accused guilty of the offences punishable under Sections 376 and 506(ii) of the I.P.C and also under Section 6 of the Act. However, the prosecution could not establish beyond reasonable doubt that the accused committed any offence under the Act or Section 506(ii) of the I.P.C. The accused was sentenced to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs.50,000 for the offence punishable under Section 376(1) of the I.P.C.
Fact of the Case:
The accused, the father of the victim girl, repeatedly committed sexual assault and rape on her, resulting in her pregnancy and delivery of a male child. The victim girl was aged 16 years when she became a prey to her father. The delay in reporting the matter to the police was justified by the victim's fear and threat from the accused.
Finding of the Court:
The court found the accused guilty of the offences punishable under Sections 376 and 506(ii) of the I.P.C and also under Section 6 of the Act. However, the prosecution could not establish beyond reasonable doubt that the accused committed any offence under the Act or Section 506(ii) of the I.P.C. The accused was sentenced to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs.50,000 for the offence punishable under Section 376(1) of the I.P.C.
Issues: The issues included the delay in lodging the FIR, credibility of the victim's testimony, proof of age of the victim, consent of the victim, and criminal intimidation by the accused.
Ratio Decidendi: The delay in lodging the FIR was justified by the victim's fear and threat from the accused. The victim's testimony was found credible, and the DNA analysis provided corroboration. The prosecution failed to prove the age of the victim, and the plea of consent was shallow. The court also found that the accused did not criminally intimidate the victim.
Final Decision: The accused was found guilty of the offence punishable under Section 376(1) of the I.P.C and sentenced to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs.50,000. The convictions under Section 506(ii) of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 were set aside.
JUDGMENT :
There can never be more graver and heinous crime than the father committing rape on his own daughter. The protector then becomes the predator. The father is the fortress and refuge of his daughter. Charged of raping his own daughter under his refuge and fortress is worst than the gamekeeper becoming a poacher and treasury guard becoming a robber (State of Himachal Pradesh v. Asha Ram : AIR 2006 SC 381).
2. The prosecution case is that, the accused, the father of the victim girl, repeatedly committed sexual assault and rape on her, on many days during the period from June, 2012 to January, 2013. The girl got pregnant. She delivered a male child on 04.05.2013.
3. The victim girl was aged 16 years when she became a prey to her father. She was then studying in Standard IX.
4. On 20.03.2013, the victim girl went to the police station, along with her mother and reported the matter. PW13 Sub Inspector recorded Ext.P1 statement given by the victim girl. On the basis of that statement, he registered Ext.P17 F.I.R. PW15 Circle Inspector conducted the investigation of the case. He filed final report against the accused for the offences punishable under Sections 376 and 506 of the I.P.C and also under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the Act').
5. The trial court framed charge against the accused for the offences punishable under Sections 376 and 506(ii) of the I.P.C and also under Section 6 of the Act. The accused pleaded not guilty and he claimed to be tried.
6. The prosecution examined the witnesses PW1 to PW15 and marked Exts.P1 to P21 documents and MO1 to MO5 series material objects. No evidence was adduced by the accused.
7. The trial court found the accused guilty of the offences punishable under Sections 376 and 506(ii) of the I.P.C and also under Section 6 of the Act. The trial court sentenced the accused to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/-and in default of payment of fine, to undergo rigorous imprisonment for a period of one month for the offence punishable under Section 506(ii) of the I.P.C. The trial court sentenced him to undergo rigorous imprisonment for a period of fourteen years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 6 of the Act. The trial court also directed that the substantive sentences of imprisonment shall run concurrently. No separate sentence was awarded for the offence punishable under Section 376 of the I.P.C.
8. Conviction entered against and the sentence imposed on him by the trial court are challenged in this appeal preferred by the accused from the jail.
9. Heard Adv.Sri.Sujith Kumar, who was appointed as State Brief and the learned Public Prosecutor and also perused the records.
10. Out of the 15 witnesses examined by the prosecution, the material witnesses are PW1, PW5, PW7 and PW9. PW1 is the victim girl. PW5 is the doctor who attended the delivery of PW1 and issued Ext.P5 certificate. PW5 had also collected the blood samples of PW1 and her child for DNA analysis. PW7 is the doctor who collected blood samples of the accused for DNA analysis. PW9 is the Headmaster of the school in which PW1 was studying. Testimony of the Victim
11. PW1, the victim girl, gave evidence in examination-in-chief as follows: She was residing along with her parents and two younger sisters. She was studying in Standard IX. She had given Ext.P1 first information statement to the police. Her date of birth is 19.01.1997. Her father used to commit sexual assault on her, by taking her to the coffee plantation in the neighbourhood, on threatening her that he would kill her. He used to commit such act till January, 2013, two or three times. He used to put his penis in her mouth. She got pregnant and then she told the matter to her mother. Her mother took her to a doctor. The doctor informed them that she was
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