Kerala High Court Upholds Step-Father's Conviction For Rape Of Minor Daughter, Says Trial Court Ought To Have Awarded Compensation U/S 357A CrPC

It stated that the minor girl who belonged to a socially and economically backward tribal community who was raped by her stepfather should be adequately compensated under the Kerala Victim Compensation Scheme. The Court thus directed the Kerala Legal Services Authority (KeLSA) to pay an amount of rupees five lakh as compensation to the minor victim.

The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice Kauser Edappagath while upholding the punishment imposed by the Special Court stated thus:

"The Court must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering the imposition of appropriate punishment. In State of M.P. v. Babulal [(2008) 1 SCC 234], the Supreme Court held that once a person is convicted for the offence of rape, he should be treated with heavy hands and an undeserved indulgence or liberal attitude in not awarding adequate sentence would encourage potential criminals. Here, an innocent minor girl was brutally raped repeatedly by her own stepfather betraying the trust reposed in him. We find no mitigating or extenuating circumstances to justify the imposition of a lesser punishment."

The accused who was the stepfather of the minor victim was convicted for rigorous life imprisonment, rigorous imprisonment for fixed terms and fines under Sections 506 (1)(punishment for criminal intimidation), Section 326B (voluntarily throwing or attempting to throw acid) and Section 323 (punishment for voluntarily causing hurt) and Section 6 (punishment for aggravated penetrative sexual assault) read with Section 5 (aggravated penetrative sexual assault) of the POCSO Act by the Special Court. Aggrieved by the conviction, the accused have preferred the appeal.

The appellant was alleged to have committed rape on the minor girl in the year 2015. The appellant took away the minor victim from the hostel after telling lies and took her to a jungle pathway near her house and committed rape on her. Thereafter, it was also alleged that the appellant slapped, intimidated and attempted to pour acid on the minor's face for resisting rape.

The Counsel for the appellant submitted that there was a delay in filing the FIR, a lack of medical evidence, and material inconsistencies in the statement of the minor victim. It was also argued that the age of the victim was not proved beyond reasonable doubt to warrant a conviction under the POCSO Act. It was further argued that this was a false case set up to seek vengeance against the appellant by the victim's mother.

On the other hand, the Public Prosecutor submitted that the appellant being the stepfather of the minor victim has breached her trust by brutally committing sexual assault. It was also argued that the statement of the victim was consistent and inspired the confidence of the Court.

The Court found that the minor victim gave a reliable, consistent and credible version of the commission of the crime by the appellant which inspires confidence of the Court. It stated that the statement of the victim corroborates with statements of other witnesses like mother and neighbour and was admissible evidence proving subsequent conduct of the victim.

“The Supreme Court in Rameshwar v. State of Rajasthan - [AIR 1952 SC 54], relying on Illustration (j) to Section 8 of the Indian Evidence Act, has held that the previous statement of the raped girl to her mother, immediately after the occurrence, is not only admissible and relevant as to her conduct, but also constitutes corroboration of her statement under the provisions of Section 157 of the Evidence Act. The said statement given by PW1 to PW2 is a fact so connected with the fact in issue so as to form part of the same transaction and hence admissible under Section 6 of the Indian Evidence Act as well”, stated the Court.

The Court found that the chemical reports and potency report of the appellant further prove the commission of the offence. It also stated that the presence of sulphuric acid was detected on the clothes of the victim during the forensic examination. 

It also stated that the unchallenged oral testimony of the mother was sufficient to prove the age of the victim under the POCSO Act since the document produced for proof of age was not admissible under the Juvenile Justice (Care and Protection of Children) Act. It stated that the POSCO Act does not prohibit the Court from relying upon the unchallenged oral testimony of the victim's mother as proof of date of birth.

“We are of the view that the objects of both legislation being different, with the former being (JJ Act) concerned with issues regarding the competence of a juvenile in conflict with the law to stand trial before a court and the latter (POCSO Act) being concerned with issues regarding the physical and mental effects on a child, of an offence committed against her, the manner of establishing the age of a child for the latter legislation can be in any one of the ways permitted under the Indian Evidence Act”, added the Court.

The court further stated that this was a fit case for the grant of compensation to the victim under Section 357A of CrPC and the Kerala Victim Compensation Scheme, 2017 for physical, and mental trauma undergone by the victim and for rehabilitation. Relying upon Hari Singh v. Sukhbir Singh (1988) and Ankush Shivaji Gaikwad v. State of Maharashtra (2013), it found that the Court have to exercise its powers to grant compensation liberally and mandatorily to victims to meet the ends of justice.

Accordingly, the criminal appeal was disposed of.

Counsel for Appellant: Advocate P Mohamed Sabah, Saipooja

Counsel for Respondents: Special Public Prosecutor Ambika Devi

Citation: 2024 LiveLaw (Ker) 147

Case title: B. v State of Kerala

Case number: CRL.A NO.673 OF 2017

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