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HIGH COURT OF KERALA
C.S. Sudha, J
BEERENDRA SINGH DHAKKER – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 33/2016
Criminal Law - Sexual Offences - IPC Sections 376(2)(n), 506(ii), PoCSO Act Sections 5(l), 6 - The court analyzed the definitions of consent and the age of the victim, ultimately finding insufficient evidence to uphold the conviction.
Fact of the Case:
The accused was convicted for raping a minor and threatening her. The victim, aged 13, was allegedly coerced into joining the accused under threats to her family. The trial court found the accused guilty based on the victim's testimony and other evidence.
Finding of the Court:
The appellate court found that the prosecution failed to prove the victim's age conclusively and that the victim's testimony did not establish lack of consent. The court determined that the accused was entitled to the benefit of the doubt.
Issues: Whether the conviction and sentence against the accused were sustainable given the evidence regarding the victim's age and consent.
Ratio Decidendi: The court emphasized that consent must be free and voluntary, and the prosecution's failure to prove the victim's age and the circumstances surrounding consent led to the acquittal.
Final Decision: The appeal is allowed; the conviction and sentence are set aside, and the accused is acquitted.
J U D G M E N T
In this appeal filed under Section 374 (2) Cr.P.C., the appellant, who is the accused in S.C. No.696/2014 on the court of Session, Kasaragod, challenges the conviction entered and sentence passed against him for the offences punishable under Sections 376 (2)(n) and 506(ii) IPC and Section 5 (l) read with Section 6 of the PoCSO Act.
2. The prosecution case as stated in the final report/charge sheet:- PW2 aged 13 years, is the daughter of CW4, Saraswathy through her first husband (CW3 Ukkam Singh is her second husband). The accused induced PW2 to join him on the promise of marriage. He threatened her that if she did not agree to the marriage, he would do away with her family and thus compelled PW2 to join him on 03/07/2014 at 11:00 a.m. The accused took PW2 to Malappuram district and they stayed at two places in Vattamkulam Village, during which he repeatedly raped PW2. Hence, the accused was alleged to have committed the offences punishable under Section 366A, 506(ii), 376(2)(n) IPC and Section 5 (l) read with Section 6 of the PoCSO Act.
3. On the basis of Ext.P1 FIS given on 03/07/2014 at 12:50 p.m. by PW1, the paternal uncle of PW2, recorded by PW18, the then Assistant Sub Inspector of Police, Neeleswaram police station, Crime no.287/2014 was registered, that is, Ext.P14 FIR under Section 57 of the Kerala Police Act, 2011. Thereafter, investigation was conducted by PW23, the then Circle Inspector who, on completion of investigation, submitted the charge sheet alleging the commission of the offences punishable under the aforementioned sections.
4. The trial court on 31/12/2014 framed a charge for the offences punishable under Sections 366A, 506(ii) and 376(2)(n) IPC and Section 5 (l) read with Section 6 of the PoCSO Act which was read over and explained to the accused to which he pleaded not guilty. On behalf of the prosecution, PWs.1 to 23 were examined and Exts.P1 to P24 and MO1 to MO5 were got marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.
5. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral evidence was adduced by the accused.
6. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty for the offences punishable under Sections 506 (ii) and 376(2)(n) IPC and Section 5 (l) read with Section 6 of the PoCSO Act. He has been sentenced to rigorous imprisonment for 10 years and to a fine of ₹50,000/- and in default of payment of fine to rigorous imprisonment for six months for the offence punishable under Section 376 (2)(n) ; to rigorous imprisonment for 10 years and to a fine of ₹50,000/- and in default of payment of fine to rigorous imprisonment for six months for the offence punishable under Section 5 (l) read with Section 6 of the PoCSO Act and rigorous imprisonment for one year for the offence punishable under Section 506 (ii) . The accused has been acquitted under Section 235 (1) Cr.P.C. for the offence punishable under Section 366A . He has been granted set off under Section 428 Cr.P.C. Aggrieved, the appellant/accused has come up in appeal.
7. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the trial court are sustainable or not.
8. Heard both sides.
9. It was submitted by the learned counsel for the accused/appellant that the prosecution has failed to prove that PW2 was a minor at the time of the incident. Ext.P17 report of PW20 and Ext.P12 certificate are inadmissible pieces of evidence to prove the date of birth of PW2. The testimony of P
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