Special Judge (POCSO), Mahesana, Gujarat: In a heinous case wherein a father raped and impregnated his 17-year-old minor daughter, the Single Judge Bench of Sarang S. Kale, J., held that the victim’s father was guilty of committing rape against her and sentenced him to rigorous imprisonment for life along with a compensation of Rs 5 Lakhs to be awarded to the victim.
Background
A complaint was filed by the victim’s older brother when the victim told him about her stomach pain, and it was discovered at the hospital that the victim was pregnant. Upon being asked about the pregnancy, the victim stated that she was raped by her father, the accused. She stated that the reason why she did not tell her brother was because she was threatened with her life and the lives of her family members. Thus, the FIR was lodged under Sections 376(2)(f)(j)(n), 354-A, 506(2) of the Penal Code, 1860 (‘IPC’) and Sections 4, 5(l)(n)(j)(2), 6 and 8 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’).
Issues and Analysis
1. Whether the prosecution proved, beyond reasonable doubt, that the age of the victim was less than 18 years on the date of the incident?
Upon perusal of the record, the Court noted that on the date of the incident, the victim was residing with her father and older brother. Her date of birth, according to the Admission Register and School Leaving Certificate issued by her school, was 19-06-2006, whereas the date of the incident was 14-03-2024. Thus, the victim was a minor at the time of the incident.
The Court further noted that the principal of the victim’s school had produced relevant documents in her deposition proving the said date of birth. However, the victim’s father had merely objected to the date of birth without producing the correct date of birth, according to them. The Court said that this objection cannot be sustained, because merely, taking objection against any fact is one thing and giving evidence against the fact is other.
Thus, the Court held that the birth date was liable to be believed true, and the victim was a minor at the time of the incident.
2. Whether the prosecution proves beyond reasonable doubt that the victim’s father threatened to kill her and thereby committed an offence under Section 506(2) of the IPC?
The Court noted that the victim deposed that the accused had threatened to kill her. The Court stated that a victim’s statement recorded under Section 164 of the Code of Criminal Procedure, 1973 (‘CrPC’) was admissible as evidence and may be used to corroborate or contradict a statement made in the Court in the manner provided under Sections 157 and 145 of the Evidence Act, 1872 (‘IEA’). However, during the cross-examination, the defense failed to highlight any inconsistency or contradiction regarding the victim’s statement under Section 164.
Thereafter, upon perusal of Sections 3, 59, and 60 of the IEA, which deals with the evidentiary value of the oral evidence, the Court held that it was established that the victim’s father threatened the victim when he had sexual intercourse with her. Hence, the prosecution had successfully proved the offence under Section 506(2) of the IPC against the victim’s father beyond a reasonable doubt.
3. Whether the prosecution proved beyond reasonable doubt that the victim’s father, by stalking and following her, contacted or attempted to contact her to foster personal interaction repeatedly, despite a clear indication of disinterest by her, and thereby committed an offence under section 354-A of the IPC?
The Court noted that the victim, in her deposition, very firmly stated that her father molested her by taking advantage of her loneliness. During the improper touch made by her father, she tried to prevent it and reminded her father that they were father and daughter, but the father did not cease his improper touch and behavior. The Court stated that this act of the victim’s father could be termed as sexual harassment as well. Thus, the Court held that it could be said that the prosecution was successful in proving the charge under Section 354-A of the IPC beyond reasonable doubt.
4. Whether the prosecution proved that, on the date, time, and place, the victim’s father committed penetrative sexual assault more than once and repeatedly raped the victim, thereby committing the offence punishable under Sections 6, 8, and 12 for the offences under 4, 5(l) of the POCSO Act and Section 376(2)(n) of the IPC?
The Court stated that the reverse burden contemplated under Section 29 of the POCSO Act must not only be required to be strictly complied with but also may be subject to proof of some basic fact as envisaged under the statute. The subject of reverse burden of proof can only be made applicable in a case where the prosecution has already led substantial evidence regarding the offence complained. The prosecution must establish a prima facie case beyond reasonable doubt and only when the foundational facts are established by the prosecution, the accused will be under an obligation to rebut the presumption that arises by adducing evidence with the standard of proof of preponderance of probability.
The Court further stated that the foundational facts in a POCSO case include the proof that the victim is a child, the alleged incident has taken place, and the accused has committed the offence and whenever a physical injury is caused, to establish it with supporting and medical evidence. If the basic and foundational facts of the prosecution case are laid by adducing legally admissible evidence, then the burden gets shifted to the accused to rebut it by establishing from the evidence on record that he had not committed the offence or that no such incident occurred or that the victim is not a child.
In the light of the aim and object of the POCSO Act along with the specific provisions like Section 29 and 30, the Court explained that the presumption of innocence of the accused as available to him under ordinary criminal jurisprudence was not available in child abuse jurisprudence, and the presumption, if any available under the POCSO Act, are to be considered strictly per the POCSO Act and not under the ordinary criminal jurisprudence. A careful reading of Section 30(2) of the POCSO Act mandates that the accused was required to prove his defence.
Regarding the charges under the POCSO Act and Section 376(2)(n) of the IPC, the Court stated that it was proved that the victim was a child aged 17 years at the time of occurrence as per the school documents as well as prosecution witness testimonies.
Upon perusal of the victim’s testimony in the examination-in-chief and before the Court under Section 164 of the CrPC, the Court held that she proved the fact that the accused was her father and by taking advantage of loneliness, he committed sexual intercourse with her forcefully and repeatedly. Further, she also stated that her father threatened her, due to which she could not tell her brother and mother about the incident.
Furthermore, the Court noted that the doctor deposed that the victim had sexual intercourse and her father was able to have sexual intercourse.
Rejecting the contention that no independent witnesses were examined, the Court relied upon Phool Singh v. State of M.P. (2022) 2 SCC 74, wherein a similar contention was rejected, stating that there was no reason to doubt the credibility and/or trustworthiness of the prosecutrix. Therefore, without any further corroboration, the accused can be convicted by relying upon the sole testimony of the prosecutrix.
Reverting to the case in hand, the Court noted that the victim had firmly stated in all her statements that her father committed sexual intercourse with her. She never lied or had an intention to punish her father. Furthermore, her deposition was consistent with the complaint and her statement under Section 164 of the CrPC. Thus, the Court stated that all the victim’s statements suggested that her father had sexually assaulted her. Additionally, the victim’s statements were corroborated by the medical evidence, and no adverse inference was brought to the Court’s notice by the victim’s father.
The Court also rejected the contention that the pregnancy could not be 6 weeks long if the sexual assault happened 4 weeks prior, stating that while counting the pregnancy period, the date of the first intercourse was not considered, but the date of the last menstrual period.
Furthermore, the Court noted that the statements recorded by the Magistrate under Section 164 of the CrPC were duly proved by respective witnesses and proved as per Section 80 of the IEA. The Court also noted that in the examination under Section 313 of the CrPC, the victim’s father only denied the case of the prosecution and pleaded that he was falsely implicated, but he did not present any defence against the charges.
Decision:
The Court concluded that it was proved that the victim’s father had intercourse with her when she was a minor. Thus, it was held that the sole testimony of the victim regarding sexual assault and other offences could form the conviction of the father.
The Court also held that the victim’s father failed to dismantle the legal presumption against him either via cross-examining the prosecution witnesses or by producing any defense witnesses to prove that he was not guilty. He also failed to probabilise the notion that he was unnecessarily framed in this case by the brother of the victim or that the victim was not mentally fit.
Accordingly, the Court held that the prosecution was successful in proving that on the date and time of the incident, the victim’s father threatened the minor victim and committed aggravated penetrative sexual assault against her, thereby impregnating her. Thus, the charges under the POCSO Act and IPC were established against the victim’s father as the prosecution succeeded in proving the case beyond reasonable doubt against the victim’s father.
The Court remarked that the present case was unique and serious. The Court had come across many cases under the POCSO Act, and it was unfortunate that it had to try this case where an accused under the POCSO Act was the father who had raped and impregnated his minor daughter. The Court stated that while enacting the POCSO Act, the legislature had no reason to think that any father could be accused under POCSO Act for raping his real daughter.
“The Court has no words to describe its anguish against the heinous act of this accused.”
The Court commented that on the one hand, the victim’s father sexually exploited his daughter, and on the other hand, he threatened her not to tell this incident to anyone, else he would not send her to her hometown, and her mother would also die. Thus, the accused not raped physically but also raped the victim mentally. Furthermore, the Court remarked that it observed the body language of the victim’s father during the trial, and there were no signs of sorrow or repentance. The Court is speechless and really shocked to come across such a case.
The Court also noted that during the victim’s deposition, her eyes were watery, and she repeatedly said that she could not believe that her father had raped her. When she was raped the first time, she did not know what happened and why her father did this to her. The Court also expressed its worry for the future of the victim.
Thereafter, the Court commended the APP for her dedication in conducting the trial because she was diagnosed with a brain tumour during the trial but postponed the surgery till her work was concluded.
Accordingly, the Court held the victim’s father guilty under Section 235(2) of the CrPC for the offences under Sections 376(2)(f)(j)(n), 354-A, 506(2) of the IPC and Sections 4, 5(l)(n)(j)(2), 6 and 8 of the POCSO Act.
Regarding the quantum of the sentence, the Court stated that the Constitution under Article 45 recognised the importance of dignity and personality of the child and envisaged a happy and healthy childhood for the children. But we live in a society where the safety and security of children remains an unfulfilled promise. The punishment aspect always revolves around the interest of the accused. We need to rethink that the children who suffer sexual abuse during childhood continue to suffer throughout their lives.
The Court added, “The society requires a justice system which not only takes care of the retributive, preventive, reformative aspect of punishment, which is oriented towards the accused, but it needs a system which takes care of the socio milieu in which girls and women are safer. That is why Nelson Mandela said safety and security don’t just happen; they are the result of collective consensus and public investment. We owe our children, the most vulnerable citizens in our society, a life free of violence and fear.”
Thus, the Court sentenced the accused to rigorous imprisonment for life along with a total fine of Rs. 16,500 to be awarded to the victim. The Court also directed that a compensation of Rs 5 Lakhs be awarded to the victim from the Gujarat Victim Compensation Fund.
[State of Gujarat v. Bhavaniprasad Rajaram Saroj, Special POCSO Case No. 35 of 2024, decided on 06-06-2025]
Advocates who appeared in this case :
For the complainant: A.P.P. R.K. Joshi
For the accused: R. M. Jani
Buy Code of Criminal Procedure, 1973 HERE
Buy Protection of Children from Sexual Offences Act, 2012 HERE
Buy Penal Code, 1860 HERE
