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Synopsis

A Special Protection of Children from Sexual Offences (POCSO) Act Fast Track Court in Kerala’s Thiruvananthapuram has held a father guilty of penetrative sexual assault, rape and sexual assault on his own daughter aged 6 years, more than once at his house while sentencing the accused to life imprisonment.

Special Judge Rekha R delivered the verdict stating that “The act of the accused brings disgrace to fatherhood. Accused who was supposed to lead, protect and make PW1 (victim) evolve as a confident and responsible person shattered her childhood and put her into extreme miseries and trauma.”

The accused was responsible for looking after his two daughters, who resided with him after his wife went to abroad for work. He allegedly committed sexual assault on his younger daughter while she was sleeping with his mother. The accused claimed that he was innocent and this case was foisted at the instance of his mother-in-law with whom he was not in good terms.

He was charged under Sections 376, 376(2)(f), 376(2)(n), 376AB of Indian Penal Code and sections 6 read with 5(l)(m)(n) of Protection of Children from Sexual Offences Act and section 75 of Juvenile Justice Act. However, the accused pleaded not guilty of having committed sexual assault on his daughter stating that “His children and wife have no enmity to him. He was against sending his wife abroad. So his mother-in-law was in inimical terms with him. This case was created falsely due to the influence of his mother-in-law.”

The child victim clearly deposed before the court that her father placed his finger on her vagina and kissed and pinched there on two occasions. The victim was also medically examined by two doctors. The court deemed it crucial to assess whether the observations made by the medical experts (PW8 and PW13) aligned with the victim’s testimony regarding the occurrence of penetrative sexual assault.

The doctors conducted examinations on the victim on July 09, 2023 at different medical facilities. According to the first doctor, PW8’s testimony, on that day, the victim visited the duty doctor accompanied by her grandmother, where she was examined. The victim also disclosed to the doctor that her father had touched her inappropriately. The examination revealed swelling, redness, and tenderness in the vaginal area, with the victim exhibiting reluctance to be touched due to discomfort. The doctor, hence, concluded that these findings indicated sexual assault. During cross-examination, the doctor clarified that a pre-pubertal child's vaginal orifice typically measures less than 1 cm, whereas the victim’s was dilated beyond that standard. Due to the hospital's lab being non-operational that Sunday, the doctor advised the victim's grandmother to take her to a government hospital and inform the authorities as collecting vaginal swabs was not feasible.

The second doctor who examined the victim later that same day at after the crime was reported, testified similarly. The medical examination indicated laxity of victim's vaginal orifice and a ruptured hymen, consistent with a history of sexual assault as reported. The doctor issued a medical certificate noting her findings.

However, the defence argued that the medical certificate’s authenticity was in question due to its preparation on loose sheets but the testimony from the doctor confirmed this hospital's practice. Though, the court in this regard held that the mere fact that the medical certificate was prepared in printed loose sheets and a blank sheet was appended to it is no ground to reject it as a bogus one.

The court further discarded the arguments of the accused noting that the medical examination made it abundantly clear that hymen of the victim was ruptured and vaginal orifice was loose and open which was uncommon for a child at the age of victim.

The court unequivocally accepted the testimony of the victim. After thoroughly examining all evidence and materials presented, it deemed her testimony to be of exceptional quality. Therefore, the court deemed her deposition reliable and sufficient to justify a conviction of the accused.

The court further said “Accused who dared to commit such heinous act is to be dealt with the iron hands of law. Maximum punishments provided under the statues are to be imposed on the accused to deter the potential offenders from committing similar offence and to give a strong message to the society.”

Consequently, the accused was sentenced to life imprisonment along with a fine of Rs. 25,000 for each offence under various sections of the POCSO Act, with default terms of rigorous imprisonment. Additionally, the court ordered rigorous imprisonment for 7 years along with a fine of Rs. 5,000 for other offences, again with default terms.

Furthermore, invoking the power under section 357-A of the Code of Criminal Procedure Code, 1973, and section 33(8) of the POCSO Act, the court recommended the District Legal Services Authority, Thiruvananthapuram, to provide adequate compensation to the child victim.

The victim was represented by Special Public Prosecutor Vijay Mohan.R.S while Advocate S.A.Sundar appeared for the accused.

 

Cause Title: xxxxxxxxxx v State [SESSIONS CASE No.2095/2023]