Kerala HC Upholds Father's Conviction for Daughter's Sexual Assault (S.376(2)(i) IPC & S.5(m)/(n) POCSO), Modifies Life Sentence to 10 Years RI, Citing Lack of Proof for 'Repeated Acts' (S.376(2)(n) IPC & S.5(l) POCSO). - 2025-05-26

Kerala High Court Upholds Father's Conviction for Daughter's Sexual Assault, Modifies Sentence

Ernakulam, Kerala – May 26, 2025 – The Kerala High Court, in a poignant judgment, upheld the conviction of Unnikrishan for the aggravated penetrative sexual assault of his 11-year-old daughter. However, the Division Bench, comprising Justice Raja Vijayaraghavan V and Justice K. V. Jayakumar , modified the life sentence imposed by the trial court, reducing it to ten years of rigorous imprisonment. The modification stemmed from the Court finding insufficient evidence to prove "repeated" acts of sexual assault, a charge for which the appellant was also convicted.

The Court affirmed the compensation of Rs. 5,00,000 to be paid to the victim and directed the District Legal Services Authority, Manjeri , to ensure its prompt disbursal.

Case Background: A Father's Betrayal

The case, described by the High Court as a "tragic case involving the repeated violation of a daughter’s innocence by the very man meant to protect her," originated from Crime No. 354/2014 of Kadampuzha Police Station. The appellant, Unnikrishan , was accused of subjecting his daughter (PW1) to aggravated penetrative sexual assault on October 6 and 7, 2014, at their residence while the child's mother (PW2) was away.

The Special Court under the POCSO Act, Manjeri , had found Unnikrishan guilty under Section 376(2)(f)(i)(n) of the Indian Penal Code (IPC) and Section 6 read with Section 5(l)(m)(n) of the Protection of Children from Sexual Offences (POCSO) Act, 2012. He was sentenced to rigorous imprisonment for life and a fine of Rs. 50,000. The current appeal (CRL.A NO. 624 OF 2020) challenged this conviction and sentence.

Arguments Before the High Court

Appellant's Contentions: The appellant's counsel, Sri. Vinay V, raised several grounds, including: * Alleged discrepancies in the testimonies of the victim (PW1), her mother (PW2), and aunt (PW12). * The failure of the investigating agency to record the child victim's statement under Section 164 of the Cr.P.C., citing Mahesh Trivedi v. The State of Bihar and Syed Masood Razvi v. The State of Telangana . * The trial court's alleged failure to properly assess the child witness's competency as per Pradeep v. State of Haryana . * Insufficient proof of the victim's age as a minor, arguing that Ext.P6 Birth Certificate was not sufficient and procedures under the Juvenile Justice Act as per Jarnail Singh v. State of Haryana were not strictly followed for victim age determination. * Medical evidence (congestion of vagina) not supporting the alleged "brutal sexual abuse." * Non-production of the Forensic Science Lab report for seized clothes. * Lack of a specific charge framed for the offence under Section 376(2)(n) of the IPC (repeated rape).

Respondent's Submissions: Smt. Neema T.V., the learned Senior Public Prosecutor, countered that: * The child victim's evidence was reliable, trustworthy, and corroborated by her mother, aunt, and medical records. * The trial court was satisfied with the child's competency to testify. * The child's immediate disclosure to her aunt and mother was admissible as subsequent conduct under Section 8 of the Indian Evidence Act, as per Biju v. State of Kerala . * The birth certificate (Ext.P6) was valid proof of age, and the appellant, being the father, did not dispute the child's age (11 years at the time of offence). * The medical evidence (vaginal congestion) was consistent with the nature of the assault, and the acts constituted offences under IPC and POCSO, citing Wahid Khan v. State of Madhya Pradesh .

High Court's Evaluation and Findings

The High Court meticulously examined the evidence and legal contentions:

1. Victim's Age: The Court affirmed that the victim was an 11-year-old child at the time of the offence. This was based on the unchallenged testimonies of PW1 (victim) and PW2 (mother), and Ext.P6 (Birth Certificate) issued by the Thrithala Grama Panchayat. The Court, referencing Rajan K.C vs. State of Kerala , held the birth certificate to be valid secondary evidence. It also noted that principles from the Juvenile Justice Act for age determination, as laid down in Jarnail Singh , could apply to victims, and a birth certificate from a local authority is a valid document under those rules.

2. Presumption under POCSO Act: The Court reiterated that while Sections 29 and 30 of the POCSO Act introduce a presumption against the accused, the prosecution must first establish foundational facts beyond reasonable doubt. "It is only upon the establishment of such foundational facts that any statutory presumption against the accused can legitimately be invoked," the judgment stated, citing Naresh Kumar Alias Nitu v. State of Himachal Pradesh and other precedents.

3. Child Witness Testimony (PW1): The victim's testimony, detailing the sexual abuse by her father (insertion of finger into vagina, licking buttocks, attempting to insert penis), was found "graphic," "credible, trustworthy and reliable." It was corroborated by PW2 (mother), PW12 (aunt to whom disclosure was first made), and PW11 (doctor who noted vaginal congestion). The Court emphasized that the evidence of a child witness must be evaluated carefully, but if reliable, no corroboration is necessary, referencing Raju v. State of Madhya Pradesh and State of Punjab v. Gurmit Singh . Minor variations in testimony were deemed natural and not fatal.

4. Offence of Rape/Penetrative Sexual Assault: The Court rejected the appellant's argument that the alleged acts would not constitute rape under Section 375 IPC or penetrative sexual assault under Section 3 POCSO due to lack of severe injuries. The judgment clarified: "PW1 has clearly stated that the appellant inserted his finger into her vagina and that he has licked her buttocks. She has also stated that he has rubbed and attempted to insert his genitals into her private parts. The above actions of the appellant would bring his devious acts within the ambit of rape/penetrative sexual assault..."

5. Non-Recording of S.164 CrPC Statement: While acknowledging the mandatory nature of recording a victim's statement under Section 164(5A) CrPC, the Court held that its omission was not fatal to the prosecution's case. "The failure of the investigating officer to get the statement of the child recorded under Section 164 CrPC does not, by itself, impair the credibility or reliability of her testimony in court... It is trite law that a statement recorded under Section 164 CrPC is not substantive evidence."

6. Competency of Child Witness: The Court found that the trial judge had adequately assessed the child's competency by asking preliminary questions and recording satisfaction, thereby complying with Section 118 of the Indian Evidence Act.

7. Crucial Finding on "Repeated Acts": The High Court found merit in the contention regarding the charge of repeated sexual assault. The judgment noted: "PW12, in her deposition, stated that the accused had subjected the victim to sexual abuse on 06.10.2014 and again on 07.10.2014. However, when examined before the Court, the victim did not speak of repeated acts of sexual abuse. She referred only to a single incident... In view of the above, while there is sufficient material to conclude that the victim was subjected to rape/penetrative sexual assault on at least one occasion, the evidence on record falls short of establishing the offence of repeated acts of sexual assault so as to attract the graver charge under Section 376(2)(n) of the Indian Penal Code or Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences (POCSO) Act."

Sentence Modification and Final Order

Based on the finding that repeated acts were not proven, the High Court proceeded to modify the sentence. The trial court had convicted the appellant under Section 376(2)(f)(i)(n) IPC and Section 6 r/w Section 5(l)(m)(n) POCSO. The High Court stated: "We have already held that there is no evidence to attract Section 376(2)(n) of the IPC [repeated rape]." Invoking Section 42 of the POCSO Act (which mandates punishment under the law providing greater punishment when an act is an offence under both POCSO and IPC), and considering the nature and gravity of the offence for a single proven instance of aggravated penetrative sexual assault by a father on his child, the Court modified the sentence.

"In that view of the matter, while affirming the finding of guilt conviction and sentence for the offence under Section 376(2)(i) of the IPC [rape on a child under twelve years of age by a relative], we order him to undergo RI for ten years and to pay a fine of Rs.50,000/- and in default of payment of fine to undergo RI for six months."

The appeal was dismissed with this modification of the sentence. The Court directed the District Legal Services Authority, Manjeri , to ensure the victim receives the Rs. 5,00,000 compensation awarded by the trial court.