'Father Is Daughter's Fortress, There Cannot Be A Graver Crime': Kerala High Court On Sexual Assault Of Girl By Father

"There can never be more graver and heinous crime than the father committing rape on his own daughter," observed the Kerala High Court recently while upholding a man's conviction under Section 376 of the IPC and sentencing him to undergo 12 years rigorous imprisonment.

Justice R. Narayana Pisharadi was dealing with the case of a 16 years old girl who fell prey to her father's repeated sexual assault and finally delivered his child a year later.

The Court observed, 

"The protector then becomes the predator. The father is the fortress and refuge of his daughter. Charged of raping his own daughter under his refuge and fortress is worst than the gamekeeper becoming a poacher and treasury guard becoming a robber."

It however set aside the conviction Section 506(ii) of the IPC and under Section 6 of the Protection of Children from Sexual Offences Act, 2012.

It also touched upon legal questions of delay in lodging F.I.R., the the credibility of the victim-girl, proof of age, and lack of victim's consent.

Background

The prosecution's case was that the accused, father of the victim girl, repeatedly committed sexual assault and rape on her on multiple occasions. The girl got pregnant and delivered a male child. On reporting the offence to the police, the Sub Inspector registered a under Sections 376 and 506 of the IPC and Section 6 of the POCSO Act.

The trial court found the accused guilty of all the offences alleged and imposed substantive sentences of imprisonment to run concurrently and fine.

The sentence imposed by the trial court was challenged in this appeal preferred by the accused from the jail.

Findings

Delay in Lodging FIR

On the question of delay in lodging the F.I.R., the Court noted that the said delay was quite natural as justified from the circumstances of the case and statement of the victim-girl. It remarked,

"No girl would have wanted the world to know that she was a person subjected to sexual assault by her own father."

It further held that a delay, per se, is not a mitigating circumstance for the accused in a case of sexual assault. It cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity; instead only puts the Court on guard to search for and consider if any explanation has been offered for the delay. It observed,

"The courts cannot overlook the fact that in sexual offences, delay in the lodging of the F.I.R. can be due to a variety of reasons, particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the victim and the honor of her family."

It also emphasized that when the prosecution witness was being examined, no question was put to her in the cross-examination by the defence concerning the delay in reporting the matter to the police. It cannot subsequently raise any grievance on such a point. Referring to Paulmeli v. State of Tamil Nadu, it reiterated a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish an explanation on a particular point, the correctness or legality of the said fact/issue could not be raised.

Credibility of The Prosecution Witness

On the question of the credibility of the prosecution witness, the Court observed that it could not even be imagined that it is a false case registered against the accused at the instance of someone else. It remarked,

"No girl would have preferred to put her honor and dignity at stake and make a false complaint against her own father at the instance of some other person who had enmity towards the father."

Acknowledging the fact that the victim-girl admitted having sexual relations with another person, the Court observed that it does not in any way affect the credibility of her testimony. It remarked,

"Even in a case where it is shown that the victim is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. Even assuming that the victim is previously accustomed to sexual intercourse, that is not a decisive question. On the contrary, the question which is required to be adjudicated is, did the accused commit rape on the victim on the occasion complained of. It is the accused who is on trial and not the victim."

The Court noted that being a victim of a sex offence, the girl cannot be put on par with an accomplice; therefore, her evidence must not attract the same amount of suspicion. Only in the case where the Court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony.

Failure to Prove Age & Plea of Consent

On the failure to prove the age of the victim, the Court held that the consequence of not proving the age of the victim is that the accused cannot be found guilty of any offence under the POCSO Act. Thus, conviction under Section 6 of the POCSO Act was set aside.

Thereby, the plea of consent arose, which the Court considered too shallow. It remarked,

"One cannot even imagine that the victim girl consented to have sexual intercourse with her father. There is gulf of difference between consent and submission. Every consent involves submission, but the converse does not follow. Helplessness in the face of inevitable compulsion clouded by fear cannot be considered to be consent as understood in law. Exercise of intelligence based on the knowledge of the significance and the moral effect of the act is required to constitute consent."

Finally, while setting aside the conviction under Section 506(ii) of the IPC, the Court remarked,

"PW1 stated in examination-in-chief that her father had threatened that he would kill her. However, on cross-examination, in answer to a specific question, she stated that her father did not threaten her...in view of the varying statements given by PW1 before the court, conviction against the accused for an offence under Section 506(ii) of the IPC cannot be based on such statement."

Case Title: Unnikrishnan v. State of Kerala

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