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Accused cannot be found guilty of any offence under the POCSO Act if the age of the victim is not proven: Kerala High Court

The Kerala High Court has upheld that a consequence of not proving the age of the victim is that the accused cannot be found guilty of any offence under the POCSO Act, 2012 through THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI in the case of Unnikrishnan v. State of Kerala (CRL.A NO. 242 OF 2019)

FACTS OF THE CASE:

When the victim girl was 16, she fell prey to her father. She was in Standard IX at the time. On March 20, 2013, the victim girl and her mother went to the police station to report the incident. Following this, a final report was made against the accused for the offences punishable under Sections 376 and 506 of the I.P.C., as well as Section 6 of the Protection of Children from Sexual Offenses Act, 2012.

According to the prosecution, the accused, the victim girl’s father, repeatedly perpetrated sexual assault and rape on her on numerous occasions between June 2012 and January 2013. The girl became pregnant. On May 4, 2013, she gave birth to a son.

The trial court charged the accused with offences punishable under Sections 376 and 506(ii) of the I.P.C., as well as Section 6 of the Act. The accused pled not guilty and claimed that he claimed to be tried. The accused was found guilty of the offences punishable under Sections 376 and 506(ii) of the I.P.C., as well as Section 6 of the Act, by the trial court. The accused was sentenced to harsh imprisonment for two years and a fine of Rs.1,000/- by the trial court.

The accused’s conviction and sentence imposed by the trial court were challenged in the appeal filed from prison.

JUDGEMENT:

Based on the evidence, it was determined that the prosecution had not proven the victim girl’s date of birth or age at the time of the alleged crimes. As a result, the prosecution has failed to establish that the victim girl was under the age of 18 or 16 at the time of the incident. The Court observed that, “The consequence of not proving  the age of the victim girl is that the accused cannot be found guilty of any offence under the Act.”

The plea of consent was deemed insufficient to warrant thorough investigation or evaluation. The Court found it difficult to believe that the victim girl agreed to have sexual relations with her father. It was observed that here is a distinction between consent and surrender.   Helplessness in the face of unavoidable force obscured by fear cannot be considered consent in the legal sense. In this present case, there was no indication made to PW1 during cross examination that she was a consenting person.

The prosecution could prove beyond a reasonable doubt that the accused raped the victim girl, which is a serious offence under Section 376(1) of the I.P.C. They were unable, however, to establish beyond a reasonable doubt that the accused committed an offence punishable under Section 506(ii) of the I.P.C. and the POCSO Act.

The sufferings endured by the victim girl would be beyond imagination. In such cases, it was determined that the accused is not entitled to any leniency in terms of punishment. Given the facts and circumstances of the case, the accused was sentenced to rigorous imprisonment for a period of twelve years and a fine of Rs.50,000/-.

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JUDGEMENT REVIEWED BY REETI SHETTY

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