IMPORTANT POINT
The court clarified that in cases of child sexual abuse, the definitions under the PoCSO Act take precedence, and dual sentencing under IPC and PoCSO Act is not permissible when one provides a greater punishment.

JUDGMENT :

C.Pratheep Kumar, J.

A father, who has been convicted for ravishing his own minor daughter is the appellant before us. He is the accused in Sessions Case No.309/2018 on the file of the Special Judge for the trial of offences under the PoCSO Act, Thalassery. The trial court convicted and sentenced him under various provisions of IPC as well as under the Protection of Children from Sexual Offences Act. The prosecution case is that the accused committed rape/penetrative sexual assault repeatedly on his minor daughter, since she was a student of class VII, at his own residence.

2. The trial court framed charges against the accused under Section 376 (2)(f),(k) and (n) of IPC and Section 5 (l) and (n) r/w Section 6 of the Protection of Children from Sexual Offences Act (PoCSO Act). The evidence in the case consists of the oral testimonies of PWs 1 to 11 and documentary evidence Exts.P1 to P21 on the side of the prosecution. No evidence was adduced by the accused. After appreciating the available evidence, the trial court found the accused guilty of the offences under Section 376 (2)(f)(k) and (n) of IPC and Section 5 (l) and (n) r/w 6 of the PoCSO Act. He was sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/-under Section 376 (2)(f)(k) and (n) of IPC and in default to undergo rigorous imprisonment for six months. He was further sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/-under Section 5 (l) and (n) r/w Section 6 of the PoCSO Act. Aggrieved by the above judgment of conviction and sentence, he preferred this appeal raising various contentions.

3. Now the points that arise for consideration are the following :-

(i) Whether the prosecution has succeeded in proving beyond reasonable doubt that the accused being the father of the minor victim has committed rape/aggravated penetrative sexual assault on her?

(ii) Whether the trial court was justified in sentencing the accused both under Section 376 (2)(f)(k) and (n) of IPC as well as under Section 5 (l) and (n) r/w Section 6 of the PoCSO Act?

4. Heard both sides.

5. Points (i) & (ii) : The prosecution has mainly relied upon the oral testimonies of PWs1 and 2 to prove the charge against the accused. PW1 is the victim herself. She would swear that on one Sunday while she was studying in 7th standard, her mother was absent in the house. At that time, her father took her to the bedroom, removed her dress, undressed himself, caused her to lie on the bed and inserted his genital organ into her genitalia. She felt pain and cried. At that time, the accused who is her father pacified her stating that there is nothing to worry. Thereafter he continued to sexually assault her as above, on several occasions. In January, 2017, their old residential building was demolished for constructing a new one. At that time, a temporary shed was constructed. In the said temporary shed also, she was similarly abused by her father, repeatedly. Finally, on one Sunday in November, 2017, while her mother went for the meeting of Kudumbasree, her father sexually abused her. When her mother returned home after the meeting, she happened to witness the incident and on seeing the incident, she became shocked. She informed about the incident to her brother. After one week, her uncle took them to his residence and thereafter they are residing in the family house of her mother. While residing in the residence of her uncle, she joined in a new school. In that school, during counselling, she had informed about the incident to a teacher, who in turn informed the matter to the Child Line. Two women from the Child Line came to her residence on 27.12.2017 and she had given Ext.P1 complaint to them. On the same day, the police also came and obtained her statement. She identified her signature in Ext.P2 FI statement given on 27.12.2017. She had also identified her signature in Ext.P3 statement given by her to the Magistrate under Section 164 Cr.P.C.

6. PW2, the mother of the vic