The reliability of the victim's testimony and the requirement of voluntary consent in cases of sexual assault.

Headnote:
conviction - sexual assault - The court confirmed the conviction and sentence for the offence under Section 376(1) of IPC but set aside the conviction and sentence under Section 67B(e) of the Act, 2000.
Fact of the Case:

The appellant, accused of sexual assault on a minor, challenged the conviction and sentence passed against him. The victim, his biological daughter, alleged that he subjected her to sexual intercourse forcibly and recorded the act on his mobile phone.
Finding of the Court:

The court found the victim's testimony to be reliable and consistent with other evidence, and therefore confirmed the conviction and sentence for the offence under Section 376(1) of IPC. However, it set aside the conviction and sentence under Section 67B(e) of the Act, 2000.
Issues: The main issue was whether the conviction and sentence passed against the accused were sustainable.
Ratio Decidendi: The court relied on the victim's testimony, which was found to be reliable and consistent with other evidence. It also considered the delay in reporting the incident and the threat made by the accused to the victim. The court emphasized that the consent in cases of sexual assault must be voluntary and not clouded by fear or duress.
Final Decision: The court allowed the appeal in part, confirming the conviction and sentence for the offence under Section 376(1) of IPC but setting aside the conviction and sentence under Section 67B(e) of the Act, 2000.

JUDGEMENT

Johnson John, J .

The appellant is the sole accused in S.C. No. 573 of 2013 on the file of the Additional District and Sessions Judge, Ernakulam and he is challenging the conviction and sentence passed against him for the offences under Sections 376 (1) of IPC and Section 67B(e) of Information Technology Act, 2000 (‘Act, 2000’ for short) as per the impugned judgment dated 03.09.2016.

2. The prosecution case, as per the final report, is that the accused, who is the biological father of the minor victim girl, subjected her to sexual intercourse forcibly at 4.30 p.m., on 21.10.2010. and thereafter, he continued to subject her to sexual intercourse on several days for a period of one year and he also recorded the above act of rape in his mobile phone and thereby, caused others to see the same and he is thereby, alleged to have committed the offences punishable under Section 376 (1) IPC and Section 67B(e) of the Act, 2000.

3. Based on Exhibit P1, First Information Statement of the victim dated 17.07.2012 recorded by PW10, Exhibit P9 FIR was registered and thereafter, PW11, Circle Inspector of Mattancherry, conducted the investigation and filed the final report and the same was taken on file as S.C. No. 573 of 2013.

4. When the accused appeared before court, he was furnished with copies of all the prosecution records and after hearing both sides, charge was framed against the accused for the offences punishable under Section 376 (1) of IPC and Section 67B(a) and (e) of the Act, 2000.

6. The charge was read over and explained to the accused to which he pleaded not guilty. Thereafter, the prosecution examined PWs 1 to 12 and marked Exhibits P1 to P16 and MOs 1 to 3 to prove the charge against the accused. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C regarding the incriminating circumstances appeared against him in the evidence of prosecution. The accused denied all those circumstances and stated that he is innocent.

Since it is found that it is not a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence. But, no evidence was adduced from the side of the accused.

7. After considering the oral and documentary evidence on record and after hearing both sides, the learned Additional Sessions Judge, by the impugned judgment dated 03.09.2016, convicted the accused and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo rigorous imprisonment for another 5 months for the offence under Section 376(1) IPC. The accused is also sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for another 10 months for the offence under Section 67B(e) of Act, 2000.

8. The point that arises for consideration in this appeal is whether the conviction entered and the sentence passed against the accused by the trial court are sustainable or not.

9. Heard Sri. Rahul S., the learned counsel representing the learned counsel for the appellant on record, and the learned Public Prosecutor, Smt. Bindu O.V. and perused the records.

10. The main argument advanced on behalf of the appellant/ accused is that the sole testimony of PW1 cannot be relied on to find the accused guilty, especially in view of the fact that PW2, the mother of the victim, has not supported the prosecution case. It is argued that the testimony of PW1 is not of sterling quality and that there is inordinate delay in filing the FIR. It is also argued that the conviction of the accused for the offence under Section 67B(e) of the Act, 2000 is not based on any legally acceptable evidence and that there is no reliable evidence in this case to connect the accused with MO1, mobile phone, and MO2, memory card.

11. The learned counsel for the appellant relied upon the dictum laid down in Santhosh Prasad v. State of B

Click Here to Read the rest of this document