'Facts Call For Lenient Approach': Kerala High Court Reduces Sentence Of Rape Convict Admittedly In Relationship With Minor Girl

Displaying a "lenient approach" the Kerala High Court recently reduced the seven year sentence of a rape convict to one year, after noting that the convict and the minor girl were admittedly in a relationship and the latter had "voluntarily accompanied" him to Ooty where the alleged incident took place. 

The high court however said that as the girl was under 16 years of age at the time of the alleged incident, her consent was not valid adding that it was not justifying the actions of the convict. 

A single judge bench of Justice CS Sudha in its order observed, "The facts and circumstances of the case call for a lenient approach to be taken against A1, who was just 19 years old at the time of the incident. The fact that A1 and PW2 were in a relationship is admitted. PW2 admitted that they had decided to marry and hence the reason why she accompanied A1 to Ooty. She also admitted that her father was against the relationship which substantiates the stand taken by the accused. Though A1 was charged for the offence punishable under Section 366A, the trial court rightly acquitted him because the testimony of PW2 clearly revealed that there was no compulsion or deceit by the accused in taking her to Ooty. There is no case for PW2 that she was forced or seduced into having illicit intercourse with another person. Her testimony shows that she had voluntarily joined A1. This is not a case where A1 by deceit or fraud, enticed PW2 out of her lawful guardianship and had taken her to Ooty". 

The high court said that it is "conscious" of the fact that the girl was was under 16 years at the time of the alleged incident in 2011 and so her "consent is not a valid consent". 

It noted that after the trial had commenced, the girl had had sent two letters to the accused, one of them written a week before she was examined before the court. It noted that when she was examined before the trial court, "she had crossed 17 years and was nearly on the verge of majority".

"In the letters she reiterates her desire to join A1," the high court said adding that in these circumstances proviso to IPC Section 376(1) needs to be invoked. The alleged incident took place in 2011. Before the amendment of Section 376 of IPC which came into force in 2013, Section 376(1) contained a proviso. As per the proviso, the Court can impose a sentence lesser than the minimum sentence of 7 years prescribed for the offence if there are adequate and special reasons which are to be mentioned in its judgment. 

The high court emphasized said that it is conscious of the fact that sexual offences against women are on the increase and in "no way was it justifying" the act of the accused.

"The legislature itself contemplated such a situation and hence the reason why such a proviso was brought into the statute despite a minimum sentence of seven years being prescribed. In criminal jurisprudence the concept of punishment has evolved from a retributive approach to a reformative approach," it underscored. 

The prosecution alleged that in 2011 the accused who was 19-years-old at the time was in a relationship with a 13 year old girl. It was alleged that when she was on her way back home from school, the accused instigated her to get into an autorikshaw, and thereafter he took her to Ooty on his motorcycle. The prosecution alleged that the accused and the girl occupied a room in a building in Ooty and where he "raped" her. As the girl was missing her father complained to the police .The next day, the girl's relatives traced the two in Ooty and they were brought back to the concerned police station, pursuant to which he was booked. 

The Sessions Court after trial and after considering that the victim was below the age of consent, convicted the accused to seven years simple imprisonment for rape under Section 376 IPC in 2016. The accused appealed this decision before the High Court.

The high court referred to the Supreme Court's decision in Sukhwinder Singh v State of Punjab (2000) where the apex court while maintaining the rape conviction said that the High Court had overlooked the proviso to S.376 IPC and had held that the facts and circumstances of the case made out an adequate and special reason to invoke the proviso. 

Considering that the accused was just 19 years old at the time of the incident and–as noted by the trial court–"expressed remorse", the high court invoked the proviso to Section 376(1) IPC and reduced the substantive sentence to "simple imprisonment for one year".