[POCSO Act] Kerala High Court Awards 20-Yr Sentence To Father Convicted For Repeatedly Raping Minor Daughter Over Two Years

The Court passed the above order in the appeal filed by the accused challenging the order of the Special Judge for the trial of offences under the POCSO Act. The Special Court convicted the accused and sentenced him to life imprisonment under Sections 376(2)(f)(k) and (n) of the IPC. Furthermore, he was also given a life sentence under Section 5 read with Section 6 of the POCSO Act.

The Division Bench comprising Justice P.B.Suresh Kumar And Justice C.Pratheep Kumar ordered that the accused cannot be convicted both under the IPC and the POCSO Act and that he can be convicted for the offence providing a greater degree of punishment.

The Court thus ordered that the accused can be convicted under Section 6 of the POCSO Act, since it provides a greater degree of punishment.

“The accused is none other than the father of the minor victim, who is supposed to protect her from any such sexual harassment from anybody else. In spite of that, he had committed rape/ penetrative sexual assault on his minor daughter repeatedly, for a period of more than two years. In the above circumstance, he does not deserve any leniency. However, considering the entire facts, we hold that this is not a fit case in which the accused is liable to get the extreme punishment like imprisonment for life, which shall mean imprisonment for the remainder of his natural life or death, as more heinous situations may arise warranting such punishments. In the above circumstance, considering the entire facts, we hold that rigorous imprisonment for a period of 20 years will be sufficient to meet the ends of justice to both the prosecution as well as to the accused.”

The allegation is that the accused committed rape/penetrative sexual assault repeatedly on the minor daughter at their own residence. The abuse started when the minor was in VII standard and continued for more than 2 years, until November 2017 when the mother witnessed the sexual assault.

The Counsel for the accused argued that there is a difference in the statements of the victim which were given on the same day.

The Court noted that the first statement was the written complaint of an innocent minor, who was merely aged 14 years. It noted that the second statement is the original First Information Statement recorded by the Woman Police Constable. It thus stated that the differences between the statements are for 'obvious reasons' since the FI statement has the professional touch of a police officer. The Court stated that both statements are not contradictory, but rather complementary to each other.

The Court further stated that there are no inconsistencies in the testimonies of the minor and the minor's mother.

The Court stated that no child would usually make sexual abuse allegations against the father. It also stated that no wife would also raise such allegations against the husband unless they have enmity. In the facts of the case, the Court noted that the minor's mother and the accused had no enmity. The Court also rejected the argument that the minor's mother was falsely implicating the accused.

From the statement of the minor and the doctor, the Court noted that there is evidence of penetrative sexual assault. The Court thus stated that the prosecution has proved rape/penetrative sexual assault committed by the accused on the minor.

The Court stated that the Trial Court was not justified in convicting the accused both under the IPC and POCSO Act. It stated that the accused can be convicted under Section 6 of the POCSO Act since it provides a greater degree of punishment.

“Therefore, the greater degree of punishment involved in this case is for Section 6 of the PoCSO Act. In the above circumstance, the accused can be punished only for the offence under Section 6 of the PoCSO Act and the punishment under Sections 376 (2)(f), (2)(k) and (2)(n) of IPC is liable to be set aside”, stated the Court.

As such, the Court modified the sentence and convicted the accused to 20 years of rigorous imprisonment under Section 6 of the POCSO Act.

Counsel for Appellant: Advocates T.U.Sujith Kumar, K.V.Winston

Counsel for Respondents: Public Prosecutor Bindu O V

Case Number: CRL.A NO. 1022 OF 2019

Case Title: V.M.Abdulkhader @ Kader v State of Kerala

Citation: 2024 LiveLaw (Ker) 562

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