Kerala Court Sentences 62 Yr Old Man Accused Of Sexually Assaulting Minor Victim To 35 Yrs Imprisonment, Rs. 1.25 Lakhs Fine

A Kerala Court recently sentenced a 62 year old to 35 years rigorous imprisonment and imposed a fine of Rs. 1.25 Lakhs for committing the offence of rape and penetrative sexual assault on a girl child, with mental disability. 

The Fast Track Special Court Judge at Thiruvananthapuram Rekha R. passed the Order.

The prosecution case is that the 2nd accused person had committed the offences of rape and sexual assault on the child in January 2013, by taking advantage of her mental disability. The first accused had also been charged with offences, however, he passed away during the pendency of the proceedings due to which the charges were ordered to be abated. 

The 2nd accused was charged with offences under Sections 376(2)(l) (Punishment for Rape), and 377 of IPC (Unnatural Offences), and Sections 3(a), 3(c), and 3(d) (Penetrative Sexual Assault) read with Section 4 (Punishment for Penetrative Sexual Assault), and Section 5(k) (Aggravated Penetrative Sexual Assault taking advantage of child's mental or physical disability) read with Section 6 (Punishment for Aggravted Penetrative Sexual Assault), Section 7 (Sexual Assault) read with Section 8 (Punishment for Sexual Assault), and Section 9(k) (Aggravated Sexual Assault taking advantage of child's mental or physical disability) read with Section 10 (punishment) of the Protection of Children from Sexual Offences (POCSO) Act, 2012. 

The Court in this case found that the victim had been a minor, suffering from 70% mental disability at the time of the incident, upon perusing the requisite medical and other documents in this regard. 

On the leading question that was put forth by the defense counsel for which the victim could not give a definite response, the Court remarked that since two persons had sexually assaulted her (the deceased first accused and the 2nd accused), the victim may not have been able to realize who had assaulted her on the alleged date of the 2nd accused's assault on her, on account of her mental retardation. It further took note that the victim had specifically stated in chief examination that she had been assaulted by the 2nd accused while she was studying in 7th grade. 

"On evaluating the deposition of PW1 in the light of her mental disability, as there was sexual assault by two accused clubbed in this case, PW1 might not be able to distinguish between two incidents when such a tricky question was put to her by the learned defense counsel," it observed. 

The Court thus proceeded to state, "In view of the mental retardation of PW1, attitude of PW1 staring at the presiding officer and standing blank and not responding to the suggestion of the learned defence counsel cannot be interpreted to understand that accused number no.2 did not assault her. Moreover the answer of PW 1 that she could not remember the incidents in 2013 to the tricky and general suggestion of learned defence also cannot be interpreted to assume that clear and the cogent evidence given by PW1 regarding the sexual assault of PW1 in chief examination is not correct in view of her disability". 

It thus categorically laid down that the accused could not benefit from the response elicited by the 'tricky question' posed by the defense counsel. 

Taking note that the psychiatric doctor and expert who had been examined had denied the defense counsel's question that mentally retarded persons could have a wild imagination, the Court proceeded to conclude that her testimony regarding the incident was true. 

It added that the dock identification of the 2nd accused by the victim could also not be discarded since it could be discerned that she had sufficient opportunity to see the accused at the time of the incident, considering the nature of the alleged acts that took place. 

The Court relied on the decision in Faisal v. State of Kerala (2016), wherein it had been held that if the accused is known to the witnesses and witnesses get sufficient opportunity to see accused at the time of incident, dock identification of accused cannot be rejected due to want of test identification parade. 

Considering the gravity of the offences committed by the accused, the Court was of the definitive view that severe punishment ought to be imposed on the 2d accused, and thus proceeded to impose the afore sentence. 

Special Public Prosecutor R.S. Vijay Mohan appeared for the State. 

The accused was represented by Advocates Bert S.L., Subhash B., and Sen A.G.

Case Title: State v. Gopinathan Nair & Anr. 

Case Number: SESSIONS CASE No.1073/2013

Click Here To Read/Download The Judgment