CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &

THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 1^ST DAY OF SEPTEMBER 2022 / 10 TH BHADRA, 1944 CRL.A NO. 160 OF 2019 AGAINST THE ORDER/JUDGMENTSC 1216/2015 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (ATROCITIES & SEXUAL VIOLENCE AG APPELLANT/S:

SHAJU@SHAJU,AGED 44 YEARS S/O. VISWAMBHARAN, C. NO.2809, CENTRAL PRISON AND CORRECTIONAL HOME, THIRUVANANTHAPURAM AND RESIDED AT SHJI BHAVAN, PARAYAMVILAKOM, THACHANCODE, MALAYADI, THOLICODE VILLAGE, THIRUVANANTHAPURAM.

BY ADVS.

RENJITH B.MARAR LAKSHMI.N.KAIMAL ARUN POOMULLI AISWARYA THANKACHAN RESPONDENTS:

1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

2 THE SUB INSPECTOR OF POLICE, ARYANADU POLICE STATION.

OTHER PRESENT:

S.AMBIKA DEVI-SPL.GP FOR ATTROCITIES AGAINST WOMEN &

CHILDREN, ASSISTED BY SMT. BINDU.O.V AMBIKA DEVI-SPL.GP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.08.2022, THE COURT ON 01.09.2022 DELIVERED THE FOLLOWING:

CR K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -------------------------------------------

Crl.Appeal No.160 of 2019 -------------------------------------------

Dated this the of 01^st September, 2022 JUDGMENT Vinod Chandran, J.

The charge in the above case is of the father of a minor girl having repeatedly committed rape on her, at times against the order of nature, threatened the girl with dire consequences if it was revealed. In addition to the offence under Sections 376 & 377 of the IPC, commission of aggravated penetrative sexual assault, under the Protection of Children From Sexual Offences Act, 2012 (for short 'POCSO Act') was also charged. The appellant is the accused, who stood trial in which the prosecution led evidence through 17 witnesses marked 18 documents and produced 5 material objects. The appellant stood convicted under Ss.376, 377 and 506(1)of the IPC and sentenced to undergo imprisonment for life under 376(2)(f)&(i) of IPC which is for the remainder of his natural life and a fine of Rs.1 lakh. Under S.377 IPC the appellant was sentenced to five years of rigorous imprisonment (RI) and a fine of Rs.50000/-. A further RI for six months under S.506 of IPC was also imposed. The appellant was also sentenced to RI for three years and a fine of Rs.25,000/- under S.7 r/w S.8 POCSO Act. Appropriate default sentences were ordered and S. 42 of the POCSO Act was reckoned, to not impose a separate sentence under S.5(l)&(n) r/w S.6 of the POCSO Act.

2. Sri. Ranjith Marar, learned Counsel appearing for the appellant takes us through the charges which speaks of a particular instance on 26.07.2015 and before that for a continuous period of two years, which by itself is vague. It is pointed out from the decisions of this Court in Rajan v. State of Kerala (2021) 4 KLT 274, Alex v. State of Kerala 2021 (4) KLT 480 & Raghavan v. State of Kerala 2021 (6) KLT 427 that there is no proof of date of birth and in such circumstance there cannot be any conviction under S. 376(i) and the various provisions under the POCSO Act. It is also pointed out that there is no voir dire carried out of the minor child and hence the testimony has to be approached with caution. It is also pointed out that there are glaring contradictions in the testimony of PW1 and PW2, about the affairs of their household. While PW1 speaks of her parents having an amicable relationship, PW2 says that the relationship was strained and there were marital discords. Reading the entire testimony, it is pointed out that very clearly there was no effective defence offered and the accused was defended by a State Brief. It is pointed out that the omissions from the FIS were not put to the victim nor were the contradictions from the S.161 statement put to the witnesses. There is inadequate legal assistance; for the State Brief having not effectively defended the accused. PW4, the teacher does not speak of a like incident with respect to another girl, who became pregnant; which is offered