Kerala High Court: The Division Bench of K.Vinod Chandran and C. Jayachandran, JJ., acquitted the father accused of raping his own minor daughter. Considering the contention that the allegation was raised due to instigation by the stepmother, observing discrepancies in statements of victim and her stepmother and failure to prove age of the victim by the prosecution, the Bench remarked,
“Forensic and semantics apart, child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused, more so if the accused is a parent; even if he is eventually acquitted.”
The allegation against the accused was that the victim, the student of 1st standard was staying with her father, stepmother and a younger sibling. Since she had injured her leg when she was playing at the school, she was absent from school and was resting at home. Her father, the accused, was looking after her and she was sleeping with him. A few days before, when she was lying on a cot with her father, he removed her undergarments and rubbed her genitals with his genitals. She told her stepmother, and subsequently, she was sleeping with her stepmother. In her testimony the prosecutrix spoke of three instances of the father having ravished the seven year old girl.
Rejecting the argument of the prosecution that the trial Judge had seen the child and that was enough proof of minority especially since the child was only seven years old, the Bench stated that such argument could not be countenanced as the the certificate produced, proved by the Headmistress of the school in which the victim was studying, was not one declared to be, the school first attended. Hence, the prosecution had failed to prove the date of birth of the victim. Hence, in absence of any valid proof to consider the offence as one punishable under POCSO Act, the Bench stated,
“We cannot but notice that the fundamental principles of criminal jurisprudence require every benefit to be conferred on the accused and no prejudice being visited on him/her.”
Noticeably, the inconsistencies galored in the accusation and the testimonies proffered before Court as the charge itself was that, on a Sunday ‘after 19-11-2015 and before 17-12-2015’ and on several prior occasions the accused committed rape on his daughter, which was though in proximate time when the First Information Statement was made, i.e. 17-12-2015 no exact date was disclosed. The Bench stated,
“Here no such allegation of repeated instances or multiple perpetrators arise and the single instance, on which the complaint was made, occurred within the prior period of less than a month; very proximate to have forgotten the exact date.”
Further in the FIS, the victim had stated that her father had removed her undergarments and rubbed his genitals on her genitals while before the Court she gave yet another account of what occurred; asserting the penetration. There was also a bland accusation that even before, her father used to do the same thing in the nights; which obviously was not disclosed to the mother. Considering the medical examination report, which indicated; ‘hymen intact. Vagina admits tips of finger only. No external injuries noted’, the Bench opined that there could not be a penetrative sexual assault that too multiple instances as alleged.
“Sample leading questions extracted hereinbefore clearly show the fact that the prosecutor led the witnesses to what he intended that they should say about the material part of the prosecution case to prove against the accused which is illegal and obviously unfair to the accused offending his right to fair trial enshrined under Art.21 of the Constitution...it is not a curable irregularity” (sic).
In the teeth of the inconsistencies pointed out by the Court and the incident having been elicited by way of leading questions, the Bench set aside the conviction, holding that the prosecution had not proved the guilt of the accused beyond all reasonable doubt as the charge was vague and did not specify the date on which the alleged act of rape was committed despite the complaint having been raised within the month itself.
Since, the act complained of had not been consistently stated, neither by the prosecutrix, nor by the stepmother to whom the victim complained, the Bench opined that the testimony of the stepmother was full of holes and as a whole lacked credibility. Therefore, the Bench extended the benefit of doubt to the accused and acquitted him of the charges. We are, in the totality of the circumstances, constrained to give the accused the benefit of doubt and acquit him of the charges. We allow the appeal reversing the judgment of conviction and setting at liberty the accused. [K. Raghavan v. State of Kerala, 2021 SCC OnLine Ker 4134, decided on 10-11-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Appellant: Adv. R.N.Sajitha
Amicus Curiae: Smt. Sai Pooja
For the State: Adv Smt.Ambika Devi S, Spl.GP Atrocities Against Women & Children & Welfare Of W & C