SHAJU Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 Ss. 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.1.00lakh. Under S.377 IPC the appellant was sentenced to five years of rigorous imprisonment (RI) and a fine of Rs.50000.00. 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.25,000.00 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 26/7/2015 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 as an explanation for the delay, by the victim. Last but not the least it is pointed out that on conviction both under 376(2)(f)&(i) only one sentence of life was imposed and in that circumstance when the charge under one of the two clauses is found to be not maintainable, then there should be mitigation insofar as the sentence is concerned. The learned Counsel would rely on a decision of the Supreme Court of the United States and one of the Court of Appeal (Criminal Division) of the United Kingdom to canvass the argument of ineffective legal assistance to defend and the caution to be exercised in evaluating the testimony of the prosecutrix in a rape case, respectively.

(3.) Smt.O.V Bindu the learned Public Prosecutor argues for upholding the impugned judgment. PW1's testimony is of a sterling quality and PW2 and PW4 corroborates her on the aspects they were privy to. The modus operandi adopted by the father was to send out the mother on some errand, confirm that she has proceeded far and then molest the minor girl. PW1 specifically speaks of her father telephoning her mother to ensure that she is on her way, to then molest the child, which fact was corroborated by PW2, the mother. The medical evidence is clinching and the Doctor has demolished the suggestion made by the defence counsel in cross-examination, effectively and completely. There is no scope to find inadequate representation and the conviction was only because there was an air tight case for the prosecution. The delay is fully explained by the prosecutrix and reference is made to State of Uttar Pradesh v. Chotey Lal (2011) 2 SCC 550. It cannot be gainsaid that the charge is vague, especially when the molestation was carried on for a period of two years and there is no possibility of the victim remembering the exact dates on which she was repeatedly molested. She specifically speaks of the last incident and the fear generated in her mind by reason of, hearing another minor girl's predicament from a like molestation. PW1 does not say that she heard it from the teacher and the argument of the learned Counsel for the appellant is frivolous. The last incident complained being just prior to the complaint, there was scientific evidence by way of presence of spermatozoa on the dress of the victim. The sterling testimony of the victim coupled with the corroboration of PW2 and PW4 as also the medical and scientific evidences unequivocally establish the crime committed on the poor girl by her own father. The learned Prosecutor urge for upholding the impugned verdict on all aspects.