'Inhuman, Can't Ignore Her Trauma': Karnataka High Court Convicts Father For Sexually Assaulting Minor Daughter

A division bench of Justice H.T.Narendra Prasad and Justice Rajendra Badamikar noted that the victim must have undergone a lot of mental agony and shock by her father's act. It thus allowed the appeal filed by the prosecution and set aside the trial court judgement dated February 3, 2017, acquitting Asif Rasoolsab Sanadi.

The bench held the accused guilty under Section 376(1) of the Indian Penal code and Section 6 of POCSO Act and directed him to pay a fine of Rs 50,000 to the victim girl (who is now married) by way of compensation towards her welfare.

Case Background:

The accused being the father of the victim girl aged about 14 years and knowing fully well that she is minor had committed forcible sexual assault on her since about 9 months and also on 19.05.2015 by wrongfully confining her in the house .

When the victim girl had been to the house of her maternal grandmother, the accused went there to secure her and at that time, the victim girl refused to go with the accused and disclosed the fact of sexual assault by the accused. The grandmother took the victim girl to the police station and a complaint came to be lodged.

Following which FIR was registered and the victim was subjected to medical examination. Further, her statement under Section 164 of CrPC was recorded before the Magistrate and the accused was arrested and remanded to judicial custody.

To prove the guilt of the accused, the prosecution examined all 11 witnesses. After hearing the arguments, the trial court observed that evidence of the victim, P.W.6 and other witnesses including the medical evidence is not at all trustworthy and thereby acquitted the accused for the offences alleged against him. Being aggrieved by this judgement of acquittal, the State has filed this appeal.

The Prosecution argued that sufficient materials were placed on record but the trial court ignored the same. Further, P.W.1-victim has clearly supported the case of the prosecution and her evidence is in consonance with the allegations made in the complaint as well as statement under Section 164(5) of Cr.P.C., but the Special Judge on assumptions and presumptions has ignored the same.

It was also contend that P.W.6-maternal grandmother of the victim and the Magistrate who has recorded the statement of the victim under Section 164(5) of Cr.P.C. have also supported the case of the prosecution and P.W.5-Medical Officer has fully supported, but without any proper reasons, the Special Judge ignored the said evidence which has resulted in miscarriage of justice.

The Accused-father on the other hand submitted that P.W.1 is a tutored witness and considering the animosity between accused and P.W.6 as admitted by P.W.1, it is evident that her evidence is not trustworthy. Doubts were also raised on the statement recorded under Section 164 Cr.P.C. by the Magistrate.

Court findings:

The court on going through the evidence of the victim noted that though defence counsel has cross-examined the victim and elicited regarding strained relationship between P.W.6 and the accused, it did not deny the sexual assault during cross-examination of P.W.1.

On perusing the testimony of other witnesses the court said,

"The evidence of P.W.5 (maternal grandmother) discloses that victim did undergone sexual assault. The accused being the father is unable to explain as to under what circumstances the victim has undergone sexual assault and as per the prosecution case, the accused himself has committed sexual assault on his daughter i.e., the victim. Apart from that, the victim girl and P.W.6-grandmother have supported the case of the prosecution and in the cross-examination there is no denial of sexual assault committed as alleged. There is no reason for these two witnesses to give false evidence."

Junking the argument that the mother-in-law and the accused had an ongoing dispute, the court observed, "P.W.6 is mother-in-law of the accused and there are no strong circumstances to show that she can go to the extent of risking the life of her granddaughter and her daughter." It added "Further, P.W.1-victim girl has no reason for giving false evidence against her own father."

Trial court proceeded with a biased mind towards the victim

The bench on perusal of the judgement of the trial court, said,

"It is evident that the trial court did not consider the position of the child and the trauma undergone by the child while facing sexual assault. The reasoning of the trial court does not inspire the consciousness of the court and the trial court on surmises and assumptions presumed certain things and acquitted the accused. The trial court has failed to consider the fact that there was no reason for the victim to give false evidence against her own father and non-denial of sexual assault during cross-examination of the victim."

It added, "The trial court on its own presumed certain aspects without considering the inhuman nature of the offence regarding father committing sexual assault/rape on his own minor daughter that too when the mother is deaf and dumb.

Further it opined, "Court cannot ignore trauma undergone by tender aged child by such inhuman act. The courts should be very sensitive in such cases, when evidence of the victim is consistent and reliable. Under such circumstances, the entire approach of the trial court is erroneous, perverse, capricious and from the initial stage itself, the trial court has proceeded with a biassed mind against the victim girl, which cannot be accepted."

Evidence Clearly Proves Accused committed Penetrative Sexual Assault:

The prosecution relied on the Supreme Court judgement in the case of Radha Mohan Singh Alias Lal Saheb v Others State of U.P. reported in (2006) 2 SCC 450, wherein it is held that, evidence of hostile witness cannot be treated as effaced or washed off the record altogether and it can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.

Following which the court said, "The victim and P.W.6 were not treated as hostile, but during their cross-examination after 7 months to some extent, they admitted good relationship between the victim and accused and strained relationship between accused and P.W.6. But that itself does not discard the entire case of the prosecution and the other evidence supports the case of the prosecution."

It held,

"The evidence led by the prosecution clearly establishes that the accused did commit an offence under Section 376(1) of IPC r/w Section 6 of POCSO Act and he is liable to be punished."

Leniency in sentence denied to accused.

The accused contended the respondent/accused is having a number of dependents and he is a poor autorickshaw driver and as such, considering his status, minimum sentence may be imposed by giving special or adequate reasons on his poverty.

To which the court said, "The accused being the father of the victim girl has committed aggravated sexual assault by exploiting her situation that too when his wife is deaf and dumb. The act was only to satisfy his lust as well as inhuman. Under such circumstances, there are no special reasons forthcoming to reduce the sentence."

It added, "As per Section 42 and Section 42A of POCSO Act, if the accused is convicted under the provisions of IPC as well under the POCSO Act, the higher punishment is required to be imposed."

Further it said, "It is submitted that now the victim girl is married and residing with her husband. Though the accused does not deserve any leniency, considering the fact that he enjoyed the liberty after the trial Court has acquitted him and considering the lapse of time and settlement of victim by marriage, we propose to impose the sentence of rigorous imprisonment for ten years with fine of Rs.50,000, with default clause of simple imprisonment for three years which will serve the purpose."

Accordingly the court directed the Trial Court to secure the presence of the accused for serving the remaining part of sentence.

Case Title: State Of Karnataka v. Asif Rasoolsab Sanadi

Case No: Crl.A.No.100190/2017

Citation: 2022 Livelaw (Kar) 92

Date Of Order: 23rd Day Of March 2022

Appearance: Advocate V.M.Banakar For Appellant

Advocate Z.M.Hattarki & Mahantesh Hiremath For Respondent

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