IN CRL.A. 233 OF 2022- KERL HC- ‘A child who was subjected to sexual assault by her father, not disclosing the same to anyone during her childhood, is no reason to think that what is spoken to by her at a matured age is false’: Kerala HC affirms conviction of man accused of raping his then minor daughter even as it modifies sentence to 20 years’ rigorous imprisonment instead of imprisonment for remainder of his natural life
Justice P.B. Suresh Kumar and Justice C.S. Sudha [12-06-2023]

Read More: Raju v State of Kerala

Simran Singh

New Delhi, June 15, 2023:  The Kerala High Court while dealing with the case wherein the father  (appellant-convict) had challenged his conviction passed by the Trial Court for sexually abusing and beating up his minor daughter, now major, with dangerous weapons, partly allowed the appeal, affirming the conviction of the appellant-convict and modifying the sentence for the offence punishable under Section 376(2)(f) of the Indian Penal Code, 1860 (IPC) to rigorous imprisonment for a period of 20 years, instead of imprisonment for the remainder of his natural life.

“Having regard to the social background of the parties and having regard to the fact that there would be more heinous crimes than the one involved in this case, we deem it appropriate to modify the sentence imposed on the accused for the offence punishable under Section 376(2)(f) of the IPC to rigorous imprisonment for a period of 20 years, instead of imprisonment for the remainder of his natural life,” said a Division Bench of Justice P.B. Suresh Kumar and Justice C.S. Sudha

In the matter at hand, the appellant challenged his conviction for the offences punishable under Sections 323, 324, 376(2)(f) and 376(2)(n) of the Indian Penal Code, 1860 (IPC) and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act, 2000).

It was the case of the prosecution that the appellant-convict used to beat his daughter with dangerous weapons while she was a juvenile and had committed rape on her at their residence on several occasions right from her childhood and that the last occurrence of sexual assault took place on 30.08.2013.

On an appraisal of the evidence on record, the Trial Court had found the appellant-convict guilty of offences punishable under Sections 376(2)(f) and 376(2)(n) of IPC and Section 23 of the JJ Act, 2000.

The appellant-convict was accordingly convicted and sentenced to undergo imprisonment for the remainder of his natural life and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for two years for the offence punishable under Section 376(2)(f) of IPC. The appellant-convict was also sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- . and in default of payment of fine, to undergo simple imprisonment for 2 years for the offence punishable under Section 376(2)(n) of IPC. He was also sentenced to undergo rigorous imprisonment for 6 months for the offence punishable under Section 23 of the JJ Act, 2000.

The issue for consideration before the Court was:

1. Whether the prosecution had established the guilt of the appellant-convict under Sections 376(2)(f) and 376(2)(n) of IPC and Section 23 of JJ Act, 2000?
2. Whether the sentence imposed on the appellant-convict was proportionate to the gravity of the guilt established?

The Bench stated that in order to prove the accusation of sexual assaults committed on the victim, the prosecution had only the evidence of the victim. “It is trite that a conviction could be found on the testimony of a prosecutrix alone in a case under Section 376 of IPC and no doubt, the evidence of the prosecutrix in such cases was of a sterling quality, unless there are compelling reasons for seeking corroboration.”

The Bench referred to the case of Rai Sandeep v. State (NCT of Delhi) which had stated that a sterling witness was a witness whose evidence was natural and consistent with the case of the prosecution qua the appellant-convict and such witnesses, under no circumstances, would give room for any doubt as to the factum of the occurrence and the evidence would have co-relation with each and every one of other supporting material, including expert opinions. It was also held in the said case that such evidence would also satisfy the test applied in cases involving circumstantial evidence, viz, there should not be any missing link in the chain of circumstances to hold the appellant-convict guilty of the offence. “…the version of such witnesses on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary, and material objects should match the said version in material particulars.”

The Bench was of the view that the evidence tendered by the vicim appeared to be natural and consistent with the case of the prosecution and the core spectrum of the crime remained intact throughout the cross-examination. “PW1 has not given room for any doubt as to the material particulars deposed by her especially in relation to the sexual assaults committed on her by the appellant-convict. The evidence tendered by her has co-relation with each and every other supporting evidence, including the expert opinion given by the doctor who examined her.”

The Bench, therefore, stated that the victim could certainly be regarded as a sterling witness and the Trial Court was justified in holding that the appellant-convict was guilty of the offences punishable under Sections 376(2)(f) and 376(2)(n) of IPC and Section 23 of the JJ Act, 2000.

The Bench disagreed with the case of the appellant-convict that the victim had not complained about the alleged sexual assaults till she attained the age of 19 years thus, her evidence needed to be scrutinised with caution. It was stated that a child who was subjected to sexual assault by her father, not disclosing the same to anyone during her childhood was of no reason to think that what was spoken to by her at a matured age was false. The Bench concluded that no daughter would depose against her own father in a manner in which the victim in the case on hand had deposed, for a flimsy reason that the appellant-convict used to scold her for showing reluctance to go to school.

The Bench stated that there was no merit in the argument by the appellant-convict that there was a delay in lodging the First Information Report and that the said delay was fatal to the case of the prosecution. “As it is well settled, the delay in lodging the First Information Report will not be fatal, if the same is satisfactorily explained. Going by the materials on record as narrated in the preceding paragraphs, we are of the view that the delay in lodging the First Information Report in the case on hand, has been satisfactorily explained by the prosecution.”

The Court further disagreed with the contention of the appellant-convict that the FSL Report did not show any seminal plasma or stains even under ultra violet examination on the Mat which the appellant-convict had allegedly sexually assaulted the victim and therefore, the accusation was false. The Bench stated that the argument was flimsy in nature.

The Bench considered another argument raised by the appellant-convict that the churidar top of the victim contained semen and human spermatozoa, and the same could not be proved as that of the appellant-convict. It was held that the prosecution could have surely attempted a DNA examination of the semen and human spermatozoa found on the cloth, but, merely for the reason that the same was not done, the Court could not reject the prosecution case, especially when there was overwhelming evidence to hold that the appellant-convict was guilty of the offences alleged.

The Court noted that the appellant-convict objected on the conduct of the prosecution in not bringing on record the report of the chemical analyst on the vaginal swab and smear which created a serious doubt as to the genuineness of the case of the prosecution that the victim was subjected to recent sexual assaults. It was stated that the evidence tendered by the victim coupled with the evidence tendered by the doctor who had conducted the medical examination, established beyond reasonable doubt the case of the prosecution, and merely on account of the fact that the vaginal swab and smear were taken for chemical analysis and its report had not been brought on record, the prosecution case could not be rejected. The court was also of the view that there was no merit in the argument advanced by the appellant-convict that non-examination of the brother of the victim was fatal to the prosecution case.

“We have perused meticulously the various decisions cited by the learned counsel for the appellant-convict and we find that those are all decisions rendered purely on the facts of those cases having regard to the general principles highlighted therein and the said decisions may not have any application on the facts of the present case.”

The Bench while dealing with the second issue at hand vis-a-vis whether the sentence imposed was proportionate to the gravity of the guilt established, the Court stated that the Constitutional Courts were empowered to modify the punishment within the punishment provided for in the IPC for specified offences. The Court deemed it appropriate to modify the sentence imposed on the appellant-convict for the offence punishable under Section 376(2)(f) of the IPC to rigorous imprisonment for a period of 20 years, instead of imprisonment for the remainder of his natural life.