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2020 Supreme(Online)(KER) 34500
HIGH COURT OF KERALA
P. B. Suresh Kumar, J
VIBHOOTHI ADHIKKARI
– Appellant
Versus
THE STATE OF KERALA – Respondent
CRL.A 168 2019
SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.RAYJITH MARK SMT.P.A.MEERA SRI.V.S.THOSHIN
The court reinforced that a minor's consent is immaterial in cases of sexual assault and highlighted the probative value of DNA evidence in establishing guilt.
Headnote:
Sexual Offense - Rape - IPC Sections 450, 506, 376 & POCSO Act Sections 5(j)(ii), 6 - The court found the accused guilty of rape and aggravated penetrative sexual assault based on consistent testimonies and DNA evidence linking him to the victim's pregnancy.
Fact of the Case:
The accused was charged with multiple offenses after a 15-year-old victim alleged that he had sexual intercourse with her multiple times, resulting in pregnancy. Evidence included testimonies from the victim and DNA analysis linking the accused to the fetus.
Finding of the Court:
The court found the victim's testimony credible, supported by other witnesses, and concluded that the accused impregnated her, established through DNA evidence. The charges under IPC Section 376 and POCSO Act were upheld, while other charges were dismissed.
Issues: Whether the victim's evidence was credible enough to support a conviction of rape and whether the DNA evidence conclusively linked the accused to the pregnancy.
Ratio Decidendi: The court held that even if a sexual relationship is deemed consensual, it is irrelevant if the victim is a minor. The integrity of the evidence, particularly regarding DNA linkage, was central to sustaining the conviction.
Final Decision: The appeal was dismissed as meritless, upholding the conviction and sanction imposed by the trial court.
JUDGMENT
The sole accused in S.C. No.595 of 2015 on the files of the Additional Sessions Court, Thiruvananthapuram is the appellant in the appeal. He challenges in the appeal his conviction and sentence in the said case.
2. The victim in the case is a girl aged 15 years.
She was residing near a quarry. The accused was an employee in the quarry and he was also residing near the quarry. The accusation in the case is that the accused had sexual intercourse with the victim girl who was a child on several occasions in the year 2014 and had also impregnated her. The offences alleged against the accused were the offences punishable under Sections 450 , 506 and 376 of the Indian Penal Code (the IPC ) and Section 5 (j)(ii) read with Section 6 of the Protection of Children from Sexual Offences Act , 2012 (the POCSO Act).
3. On the accused pleading not guilty of the charges, the prosecution examined 13 witnesses as PW1 to PW13 and proved through them 16 documents as Exts.P1 to P16. The accused was, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution. The accused denied the evidence and maintained that he is innocent. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. He did not, however, adduce any evidence.
4. On an appraisal of the materials on record, the court below found that the prosecution has not established the guilt of the accused under Sections 450 and 506 of the IPC . The court, however, found that the accused is guilty of the offences punishable under Section 376 (1) of and Section 5 read with Section 6 of the POCSO Act. On the said finding, the court convicted the accused and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, and in default of payment of fine, to undergo rigorous imprisonment for one year, for the offence punishable under (1) of the . Similarly, the accused was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for one year, for the offence punishable under Section 5 read with Section 6 of the POCSO Act. The court also ordered the substantive sentences imposed on the accused to run concurrently. The appellant is aggrieved by his conviction and sentence.
5. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
6. The learned counsel for the appellant contended that the evidence tendered by the victim girl as PW6 is not credible at all to form the sole basis of the conviction of the accused. It was also contended by the learned counsel that at any rate, the finding of the court below that it is the appellant who has impregnated the victim girl is unsustainable. It was pointed out that the said finding was rendered solely based on the analysis of the DNA extracted from the blood sample of the accused and the foetus of the victim girl. It was argued by the learned counsel that there is nothing on record to show that the blood sample, from which the DNA was extracted for analysis was the blood sample of the accused. According to the learned counsel, in the circumstances, even if the court finds that the evidence tendered by the victim girl is reliable and acceptable, the conviction of the accused under Section 5 (j)(ii) read with Section 6 of the POCSO Act is unsustainable and that he can be convicted in that event, only under Section 3(a) read with Section 4 of the POCSO Act.
7. Per contra, the learned Public Prosecutor submitted that the oral evidence tendered by the victim girl is natural, consistent and very much convincing. It was also argued by the learned Public Prosecutor that the evidence tendered by the doctor who has taken the blood sample of the accused as PW8 and the evidence tendered by the investigating officer a
