Madras High Court: In a criminal appeal filed against judgment of conviction and death penalty awarded by the Sessions Judge to the father for raping his daughter, the division bench of S.S.Sundar and Sunder Mohan*, JJ. upheld the conviction of the father for an offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’). However, the court viewed that it is not a case which would fall under the ‘rarest of rare’ category, thus it commuted death penalty to life imprisonment. Further, the court acquitted the mother of the charge under Section 6 read with Section 17 of the POCSO Act. However, convicted her for the offence under Section 21(l) of the POCSO Act.
The Court reiterated that if the evidence of a sole witness or the victim of a sexual offence, inspires confidence, the Court need not look for corroboration. The Court noted that the minor victim stated about the various acts committed by her father between the ages of 7 and 12; that after she attained 12 years, her father had committed penetrative sexual assault on several occasions. She also deposed that she became pregnant when she was studying in 10th standard and her father had pressed and kicked her stomach to ensure miscarriage and that when he failed in those attempts, he along with his wife went to the medical shop and bought a tablet which she took. The victim informed her friend and then her teacher about the occurrences. Thereafter, the teacher had informed the Headmistress of the school, who in turn called the Child Helpline.
The Court said that the teacher’s version that the child informed her about the various sexual abuses committed by her father, corroborates the version of the minor victim. Further, after perusing the Medico-Legal Examination Report issued by the doctor, the Court noted that there is evidence of penetrative sexual intercourse. Also, it regrettably noted that two finger test had been conducted in the instant case though the Supreme Court in several cases have repeatedly held that such a test is neither acceptable nor desirable to ascertain whether the victim was subjected to sexual intercourse.
Thus, the Court reminded the doctors that if they conduct any test in contravention of the directions in State of Jharkhand v. Shailendra Kumar Rai, (2022) 14 SCC 299, they shall be guilty of the misconduct
The Court opined that the minor victim’s evidence is cogent and convincing and can be the sole basis to determine the guilt or otherwise of the accused and the absence of any corroboration would hardly make any difference. Therefore, even if the expert opinion of the Doctor is ignored, there is nothing to doubt the victim’s version.
The Court said that the minor victim has been consistent in her stand throughout. Even though the father had sought pardon and also requested her to withdraw the complaint, she stuck to her version throughout, thus her evidence inspires confidence and there is absolutely no evidence to doubt her version.
Concerning the argument on violations of statutory provisions by the accused persons, the Court said that procedure is a handmaid of justice. If in a given case, it is found that the procedural lapses have not impacted or caused any dent in the prosecution case or while appreciating the evidence of the victim, then those procedural lapses would not vitiate the trial. Merely because the counsel has not put certain questions to the witnesses, the trial would not be vitiated.
The Court viewed that the prosecution has established that the minor victim had suffered the offences committed by the father. Therefore, the Court held the father guilty of the offence under Section 6 of the POCSO Act, 2012. Considering the nature of the cruelty committed by father on the minor victim, the Court held him guilty of an offence under Section 75 of the Juvenile Justice Act, 2015.
However, the Court did not find him guilty under Section 506(i) IPC, as there is no evidence that he has committed any offence of criminal intimidation on the victim.
The Court noted that ‘Abetment’ is defined under Section 107 IPC, which is incorporated in Section 16 of the POCSO Act. The prosecution had established that the mother knew about the father’s sexual abuse of their child. Further, it noted that Clause ‘thirdly’ of Section 16 of the POCSO Act and Section 107 of IPC, employs the word, ‘intentionally’ and not ‘knowingly’.
The Court said that the minor victim’s evidence vis-a-vis, the role played by the mother does not suggest that she had any intention to aid the father in committing the sexual offences. The prosecution evidence disclosed that she had protested at every stage and the father had abused and beaten her, besides intimidating her with dire consequences. Therefore, the mother’s knowledge of the illegal acts and her omission to prevent it or complain about it would not amount to “intentional aiding”.
Further, the Court said that under the General Law, there is a presumption that the accused intended the probable consequences of his act. That apart, Section 30 of the POCSO Act, also states that in any prosecution for an offence which requires a culpable mental state, the Court shall presume the existence of such culpable mental state. The Court said that the evidence adduced by the prosecution in the instant case clearly points out that mother had not intentionally aided the father. Therefore, the general law presumption and the statutory presumption have been rebutted in this case.
Therefore, the Court held that the charge against the mother under Section 6 read with Section 17 of the POCSO Act has not been established. However, the Court viewed that she is guilty of the offence under Section 21(l) of the POCSO Act, 2019 because she had not reported the commission of an offence and ignorance of the law, is not an excuse. Further, the Court held her guilty under Section 75 of the JJ Act, 2015, as she had exposed the child to mental and physical suffering, due to the act of the father.
The Court said that this case does not fall within the category of ‘rarest of rare cases’. Further, it remarked that the Trial Court was carried away by the act of the father who had committed grave sexual offences against his daughter. There is no doubt that the act committed by the father was gruesome. However, it would not fall within any of the parameters laid down in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh v. State of Punjab, (1983) 3 SCC 470.
The Court said that the sentence of death can be imposed only in the rarest of rare cases. Therefore, the imposition of the sentence of life imprisonment is the rule. The Court viewed that it is not a case which would fall under the ‘rarest of rare’ category, as there is nothing on record to show that the father was a menace to society and there is no possibility of reformation at all. Thus, the Court modified sentence of death penalty imposed on the father to life imprisonment with a fine of Rs.25,000/- in default to undergo rigorous imprisonment for three months for the offence under Section 6 of the POCSO Act. However, it confirmed the sentence of imprisonment for three years imposed against the father for the offence under Section 75 of the JJ Act.
The Court acquitted the mother of the charge under Section 6 read with 17 of the POCSO Act. However, it convicted her of the offence under Section 21(l) of the POCSO Act and sentenced her to six months as imposed by the trial Court.
As regards the sentence for the offence under Section 75 of the JJ Act, considering the offence, the nature of the allegation against the mother, the circumstances in which she was living and the fact that she was in a helpless situation, the Court reduced the sentence imposed by the trial Court, to the period of sentence already undergone.
[State of Madras v Father of Victim Child, R.T. No.2 of 2022 and Crl.A. Nos. 427 and 392 of 2023, decided on 21-11-2023]
*Judgment Authored by: Justice Sunder Mohan
Advocates who appeared in this case :
For Appellant: Senior Counsel R.Rajarathinam, Senior Counsel Abudukumar Rajarathinam
For State: Advocate Hasan Mohammed Jinnah ,Advocate J.R.Archana, Advocate M.Sumi Arnice, Advocate A.Sahana Fathima