Point of Law: Section specifically exonerates a child from being proceeded against under S.22.

JUDGMENT :

C. JAYACHANDRAN, J.

1. Spousal discord inflated to personal vendetta is disastrous, if minor daughter is made a sword against the father, accusing a tabooed depravity is the sheet anchor of the appellant's arguments in this appeal, filed under the Proviso to Section 372, Cr.P.C.

2. This victim appeal is directed against the judgment of the Additional Sessions Court No. I (Special Court), Pathanamthitta in S.C. No. 314/2017 dated 27.2.2020, as per which, the accused persons - father of the victim and his friend - were found not guilty of offences under Section 376, read with Section 34 of the Penal Code and Section 4, read with Sections 3, 6 and 5 of the Protection of Children from Sexual Offences (POCSO) Act.

The prosecution case:

3. The accused persons committed rape, sexual assault and penetrative sexual assault on the minor daughter of the first accused several times during December, 2015 and February, 2016 by caressing her breasts, fingering her vagina and by doing cunnilingus at A1's bedroom in House No. 304 of Ward No. XIV, Paranthal, Thekkekara Village, Pandalam, thus committing the offences under Section 376, read with Section 34 of the Penal Code and Section 4, read with Sections 3, 6 and 5 of the Protection of Children from Sexual Offences (POCSO) Act.

4. The prosecution paraded 11 witnesses, through whom Exts.P1 to P15 were marked. After examination under Section 313 Cr.P.C. DW-1 and DW-2 were examined as defence witness; Exts.D1 to D3 were marked.

5. On an analysis of the facts and evidence, the learned Sessions Judge disbelieved PW-1/victim and found that the medical evidence does not support the prosecution allegations. The learned Sessions Judge also found that the accused persons were falsely implicated at the instance of the victim's mother to wreak personal vengeance. On such findings, the Special Court acquitted the accused and went one step further, directing registration of a case against mother of the victim under Section 22 of the POCSO Act.

Appellant's arguments:

6. The primary point canvassed by Advocate Manu Ramachandran, learned counsel for the appellant/victim, is that the learned Special Judge failed to appreciate the presumption under Section 29 of the POCSO Act in acquitting the accused. Section 29 casts a reverse burden on an accused prosecuted for offences under Sections 3, 5, 7 and 9 of the Act to prove that he had not committed the offences alleged. This mandatory presumption has not been rebutted by the accused by adducing satisfactory evidence. Learned counsel then canvassed that the Sessions Court grievously erred in disbelieving PW-1, a minor girl, who was molested by her own father and his friend. PW-1 gave a realistic account of the circumstances under which she was molested by the accused persons and there exists nothing inherent in her evidence to disbelieve her, submits learned counsel. In the nature of the prosecution allegations, absence of any medical evidence showing penetration is of no impact. Similarly, the evidence tendered by the twin sister of the victim – examined as DW-2 is no reason to disbelieve PW-1, since DW-2 was admittedly residing along with and in the custody of the first accused and it is only natural that she would not vouch against her father. It should have been noticed by the Sessions Court that no daughter would come forward with an allegation of a sexual nature against her father, unless the same is true. It was further contended that insofar as the offence of rape under Section 376 is concerned, as also, in the case of cognate offences under Sections 3 to 6 of the POCSO Act, it is well within the limits of law to rest a conviction on the sole testimony of the victim. The judgment impugned is contrary to the hypothesis of the guilt established by satisfactory evidence and therefore, perverse, liable to be overturned is the final submission of the appellant/victim.

Arguments of respondents/accused:

7. Learned counsel for respondents/accused argued in complet