JOMON @ ROCKY Vs. STATE OF KERALA

JUDGEMENT

(1.) The appeal is filed by the accused in SC No.7/2012 of the Additional Sessions Court, Ernakulam challenging judgment dated 29/10/2014 by which he was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 25,000/- for offence u/s 376 of I.P.C. and to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 25,000/- for the offence u/s 366 of I.P.C. Sentences were to run concurrently.

(2.) The learned counsel for the appellant Sri.Renjith B.Marar argued that this is a case in which the accused along with the victim were residing together as husband and wife though a valid marriage could not be proved. The evidence in the case only discloses a consensual sexual activity and all along the victim had stated that she was 18 years and above. The finding of the Court below that she was a minor girl aged below 16 years is absolutely baseless and without sufficient material. The material relied upon by the Court below was not enough to prove the age of the victim. They were living as husband and wife for quite a long time and when it was felt that there are issues between them, they had to separate and this is not a case where he had kidnapped a minor girl and used her to satisfy his sexual fantasies. On a reappreciation of the evidence, these facts would be evident and clear and even assuming that an offence is made out, the accused himself was only 19 years at the time when the alleged commission of offence had occurred and therefore, even if it is found that the accused has committed any of the alleged offences, the discretion of this Court should be exercised and a lesser punishment be imposed on the accused. He has already suffered imprisonment since the date of judgment

(3.) On the other hand, learned Special Public Prosecutor Smt.S.Ambika Devi, argued that there is enough evidence to prove that the girl is a minor and this is a case in which the accused was having sexual intercourse with her which is evident from the fact that she had become pregnant and had given birth to a child. Her consent is immaterial as she was below the age of 16 years at the time when they were admittedly having sexual activity. Hence, this is a case in which a minor girl below the age of 16 was lured on the belief that they are having a love affair, he utilized her for a substantially long period and ultimately when it was found that she was pregnant, he had disowned her. The whole purpose of his association with the young girl was only for the purpose of sexually abusing her and using her. Such persons do not deserve any sympathy and the Court below had while imposing the sentence taken note of all the factual circumstances involved in the matter and there is no reason why this Court should interfere with the finding of guilt as well as the sentence.