The Kerala High Court on Wednesday, while dealing with a POCSO case where a father was accused of molesting his minor daughter, observed that false allegations of child molestation particularly against a parent can have a dangerous impact on the accused.
A Division Bench comprising Justice K Vinod Chandran andJustice C. Jayachandran while acquitting the father 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. Here we have the case of a child raising such accusation against her father with the active support of the stepmother; sheer instigation by the latter, pleads the accused.
Case:
An appeal filed by a man who was convicted by a trial court for molesting his daughter. He was booked upon his minor daughter accusing him of repeatedly sexually molesting and even committing penetrative assault on her. His wife – the girl’s stepmother – claimed that the child had narrated the ordeal to her and thereafter a complaint was registered with the police.
Allegations:
Minor Girl (PW1) was staying with her father, stepmother and a younger sibling. At that time she was studying in the 1st Standard and she had injured her leg when she was playing at the school. Due to the injuries she was absent from school and 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. It was also casually stated that such instances had occurred previously. The statement was signed by PW2, the stepmother.
Contentions Raised:
Amicus curiae in the case Advocate Sai Pooja challenged the conviction on several compelling grounds, particularly due to the prosecution’s failure to produce vital documents before the Court.
The date of the alleged act was not specified and there was a delay in reporting the offence. Additionally, it was argued that there were clear discrepancies in the testimonies of the child and her stepmother themselves. Moreover, the medical evidence did not reveal any injury to genitals and there was absolutely no evidence of a penetrative sexual assault.
According to Supreme Court decision in Santosh Prasad @ Santosh Kumar v. State of Bihar when there are material contradictions in the evidence of the prosecutrix and when there is a delay in lodging the FIR, a conviction cannot be entered.
The amicus asserted that the embellishments in the testimonies of the step mother indicated her malafide intention to somehow remove the accused from the house.
On these grounds, it was argued that there was nothing to attract provisions of the Protection of Children from Sexual Assault (POCSO) Act as the age of the child was not proven by the prosecution as per law.
Arguments Put Forth For Complainant
Special Government Pleader S Ambikadevi responded that the child’s narration of molestation to the stepmother is res gestae under Section 6 of the Evidence Act. Then it was argued that the testimony of a rape victim has the same sanctity of an injured witness and can be solely relied on to base a conviction without any corroboration.
The Special GP further contended that the trial Judge had seen the child and that was enough proof of minority especially since the child was only seven years old.
Kerala High Court
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Age of the Girl
The Court refused to accept the contention that the trial judge had seen the victim and that would suffice. Moreover, the evidence of the certificate from the school that the child was studying in was also not from the school first attended as required under the POCSO Act.
The Court relied on the decision in Alex v. State of Kerala in which it was held that the provision of the Juvenile Justice (Care and Protection) Act, 2015 – Section 94(2) – requiring only a date of birth certificate from a school, cannot be imported to determine the age of a victim under the POCSO Act.
It also referred to the judgement of the Supreme Court in Ravinder Singh Gorkhi v. State of U.P, which specifically spoke of the necessity and sufficiency of proof, to be the one available in the statute itself.
The Court opined that the benefit conferred on an accused in one statute, the JJ Act in this case, cannot be imported into another statute, the POCSO Act, so as to prejudice the accused in a prosecution under the other statute. The court said,
In this context, 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.
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Discrepancies in Testimonies
As such, the Court agreed with the amicus curiae that there are inconsistencies and discrepancies in the accusation and the testimonies proffered before Court.
It also pulled up the prosecution for asking leading questions to the child which has been held as illegal and unfair to the accused, offending his right to a fair trial. The Court also recorded that the evidence from the medical examination also showed no proof of any penetrative assault. Further, it found that the testimonies in the instant case warranted further corroboration.
The court therefore concluded,
The account of the incident to the stepmother as spoken of by the latter also varies in content. There is serious doubt about the first information received by the Police.
…in the teeth of the inconsistencies pointed out by us and the incident having been elicited by way of leading questions, we find it difficult to uphold the conviction as entered into by the trial court.
Adding further the high court remarked,
The prosecution has not proved the guilt of the accused beyond all reasonable doubt. The charge is vague and does not specify the date on which the alleged act of rape was committed despite the complaint having been raised within the month itself. The act complained of has not been consistently stated, neither by the prosecutrix, nor by the stepmother to whom the victim complained.
The testimony of the stepmother is full of holes and as a whole lacks credibility. We are, in the totality of the circumstances, constrained to give the accused the benefit of doubt and acquit him of the charges.
Accordingly, the conviction of the appellant was set aside and he was set at liberty.
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