Mere Fact That Accused Is Father Of Victim, It Does Not Bring Incestual Sex Within Purview Of Section 377 IPC: Kerala HC Upholds Rape Conviction
The Kerala High Court observed that the mere fact that the Accused is the father of the victim, does not bring the incestual sex perpetrated by him upon her daughter, within the purview of Section 377 of the Indian Penal Code 1860, (‘IPC’).
The Court upheld the judgment of conviction against the Accused-Father for the offence of rape of his daughter and set aside the sentence imposed under Section 377 of the IPC.
The Division Bench of Justice Raja Vijayaraghavan V and Justice G Girish held, “As far as the present case is concerned, the testimony of PW1 is confined to the acts of sexual intercourse perpetrated upon her by the accused/appellant, who is none other than her father. True that, the sexual relationship by a father upon her daughter is a thing which is absolutely unnatural. However, what Section 377 I.P.C. contemplates is the vulgarity and un-naturality in the act of sexual intercourse which could be termed as carnal and against the order of nature, and not in respect of the un-naturality due to the relationship between the persons indulging in the said act. Therefore, the mere fact that the appellant/accused herein is the father of the survivor, does not bring the incestual sex perpetrated by him upon her daughter, within the purview of Section 377 I.P.C.”
Advocate Jithin Babu A appeared for the Accused while Special GP Ambika Devi and Sr PP Alex M Thombra appeared for the State.
A victim, studying in 8th standard, told her school office about the events of sexual exploitation perpetrated upon her by her Father/Accused since she was studying in class IV. Apart from various other sexual activities done by her father, the victim also stated that whenever she resisted the above acts of her Father/Accused, he tried to smother her by thrusting a pillow upon her face and getting hold of her neck.
The Sessions Court convicted the Father/Accused for the offences under Section 376 and 377 of the Indian Penal Code, 1860 and Section 3(a) read with Section 4 and Section 5(l)(m)(n) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’). Aggrieved by the conviction and sentence, the Accused filed an appeal before the High Court contending that the Sessions Court arrived at the conclusion relying on the solitary evidence of the victim.
The Court observed that the offence took place within four walls of the home at a time when her mother was out for her work, it would be preposterous to expect any other ocular evidence pointing to the offences against the Father. Further, it added that the minor discrepancies in the evidence of the victim in connection with her omission to state to the Investigating Officer certain instances of sexual exploitation of her father are not of such a nature capable of shattering the credibility of the evidence of that witness. “the challenge raised by the appellant on the ground of delay in reporting the offence, absence of evidence to corroborate the testimony of PW1 and the minor discrepancies of omission to state some incidents to the Investigating Officer, are of no consequence.”, the Court held.
The Court ordered, “The conviction of the appellant/accused for the offences under Section 377 I.P.C., Section 3(a) read with Section 4 and Section 5(l)(m)(n) read with Section 6 of the POCSO Act, and the sentence imposed thereunder by the Trial Court, are hereby set aside. (ii) The conviction of the appellant/accused for the offence un- der Section 376 I.P.C. by the Trial Court, is upheld.”
Accordingly, the Court partly allowed the appeal.
Cause Title: Shaji M v. State of Kerala (Neutral Citation: 2024:KER:60235)
Appearances:
Appellant/Accused: Advocates Jithin Babu A, Arun Samuel, S.K. Adhithyan, Anood Jalal K.J.
Respondent: Special GP Ambika Devi and Sr PP Alex M Thombra