Kerala High Court Upholds Priest's POCSO Conviction, Modifies Sentence; Acquits Brother in Harbouring Case

Kochi: In a significant ruling concerning a sexual assault case involving a former priest and a minor parishioner, the High Court of Kerala has upheld the conviction of the first accused, Fr. Edwin Pigarez , under various sections of the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences (POCSO) Act. However, the court modified the life sentence imposed for rape to 20 years of rigorous imprisonment. Simultaneously, the court acquitted the second accused, Silvester Pigaruz , the brother of the first accused, setting aside his conviction under Section 212 IPC (Harbouring offender), citing insufficient evidence to prove he had knowledge of the registered crime at the time of the alleged harbouring.

The judgment was delivered by a division bench of Justices P.B. Suresh Kumar and Johnson John in appeals filed by the two accused (Crl.A Nos. 1321 of 2016 and 160 of 2017) against the judgment of the Additional Sessions Court, Ernakulam (Special Court for Violence Against Women & Children).

Case Background

The case stemmed from Crime No. 135/2015 of Puthenvelikkara Police Station. The victim, a minor girl studying in the eighth standard, was a parishioner of the church where the first accused, Fr. Edwin Pigarez , served as Vicar between 2014 and 2015.

According to the prosecution, the priest sexually assaulted and harassed the victim on multiple occasions at the presbytery over the period. The matter came to light on March 28, 2015, when the victim's mother found her at the presbytery and, growing suspicious, questioned her daughter, who revealed the assaults. A complaint was subsequently filed on April 1, 2015.

The Special Court had convicted Fr. Edwin Pigarez for offenses under Sections 375(a) read with 376(2)(i) and (n), and 375(b) read with 376(2)(i) IPC, along with various sections of the POCSO Act (Sections 3(a), 3(b) read with 4, 5(l) read with 6, 9(l) read with 10, and 11(i) and 11(ii) read with 12). He was sentenced to imprisonment for the remainder of his natural life for the rape offense.

The second accused, Silvester Pigaruz , was convicted under Section 212 IPC for allegedly harbouring his brother, the first accused. He was sentenced to simple imprisonment for one year. Four other accused in the trial were acquitted.

Key Issues in Appeal

The appeals challenged the conviction and sentencing of both accused. The key points for consideration before the High Court were the sustainability of the convictions, particularly focusing on:

1. Whether the prosecution established the victim was a child under the POCSO Act.
2. Whether the prosecution proved the commission of rape, sexual assault, and sexual harassment by the first accused beyond reasonable doubt.
3. Whether the conviction of the second accused under Section 212 IPC was sustainable.
4. Whether the sentences imposed were appropriate.

High Court's Analysis and Findings

On the First Accused (Fr. Edwin Pigarez ):

The court meticulously examined the evidence, with particular emphasis on the victim's testimony (PW1). The defence argued that the victim's evidence was tutored and inconsistent with her mother's initial complaint, and questioned the proof of age and the non-examination of a counsellor the victim had reportedly met.

The bench referred to the concept of a "sterling witness" as defined by the Supreme Court in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 , noting that such testimony must be of high quality, unassailable, consistent, natural, and corroborated by other supporting material. The court found the victim's evidence to be "very much real and natural," consistent, and corroborated by circumstantial evidence, including the doctor's finding of penetration (PW20) and testimonies of other witnesses like the mother (PW2), catechism teachers (PW5, PW10), school manager (PW6), parishioners (PW7, PW9), the victim's grandaunt (PW8), and the Bishop (PW12). The court highlighted that the first accused did not dispute the victim's presence at the presbytery on the key date (28.03.2015) during his Section 313 examination.

Regarding the proof of age, the court relied on Ext.P31, the extract of the Register of Birth, and the testimony of the Registrar (PW25). Citing Ravinder Singh Gorkhi v. State of U.P., (2006) 5 SCC 584 , the court affirmed that a birth certificate extract under Section 17 of the Registration of Births and Deaths Act, 1969, is admissible evidence to prove birth. The court distinguished the reliance on Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 in Jarnail Singh v. State of Haryana, (2013) 7 SCC 263 , stating that Jarnail Singh did not lay down that age must only be proved under the JJ Act, overriding the Evidence Act. The court concluded that the victim's date of birth (21.09.2000) was proven, establishing her minority during the relevant period.

The court thus upheld the Special Court's finding that the first accused was guilty of the charges.

On Sentencing:

While affirming the conviction for rape, the court considered the proportionality of the sentence. Recognizing that rape is a crime with severe psychological and physical effects, the bench also noted the principle that sentences should be proportionate to the crime's gravity. The court felt that while the crime was heinous, a sentence of imprisonment for the remainder of natural life might be too harsh compared to potentially more heinous crimes. Therefore, the sentence for the rape offense was modified to rigorous imprisonment for a period of 20 years, without remission.

On the Second Accused ( Silvester Pigaruz ):

The allegation against the second accused was that he harboured the first accused, facilitating his travel to Bangalore and Dubai after the crime was registered. Evidence indicated the first accused left for Bangalore in the second accused's car on the night of April 1, 2015, the same day the crime was registered.

The court emphasized that for a conviction under Section 212 IPC, it must be established that the person harbouring had "knowledge that he is an offender or has reason to believe to be an offender." The court noted that the crime was registered only on April 1, 2015. While the second accused's meeting with the victim's grandaunt (PW8) to request a settlement was brought out in evidence, the court found this insufficient to prove he had knowledge of the registered crime or reason to believe his brother was an offender at the exact time he allegedly harboured him by providing transport. The court allowed for the possibility that the first accused might have presented a different picture to his brother, especially given his status as a priest.

Concluding that the evidence was not sufficient to establish the requisite knowledge under Section 212 IPC, the court set aside the conviction of the second accused and acquitted him.

Conclusion of Appeals

In summary, the High Court allowed the appeal of the second accused (Crl.A.No.1321 of 2016), setting aside his conviction and acquitting him. The appeal of the first accused (Crl.Appeal No.160 of 2017) was allowed in part, affirming his conviction but modifying the sentence for the offense of rape from imprisonment for the remainder of natural life to rigorous imprisonment for 20 years without remission.

The judgment reinforces the legal standards for assessing victim testimony in sexual offence cases and clarifies the requirements for proving the offence of harbouring under Section 212 IPC, particularly the necessity of establishing the harbourer's knowledge of the principal offender's status in relation to a registered crime.