The Kerala HC on 10th March 2021 decided an appeal in which gang rape of a minor girl by five men was alleged. The incident took place on several occasions since the year 2010.
A criminal appeal was filed in the Kerala HC against an order in 2015 of the Special Judge for Trial of Offences against Children at Thalassery.
The victim girl had alleged incidents of rape against 5 accused (aged between 48 to 79) in the years 2010 and 2011. Further, in 2012, she was sexually assaulted by them. Thus, a complaint was made in 2013, against which the trial court acquitted the accused persons under the POCSO act, however, were held accountable under IPC. All accused were given life imprisonment for gang rape and the first two accused were additionally sentenced to 5 years imprisonment for kidnapping.
The accused as well as the victim girl had filed revision petitions with the HC. Along with that, the accused sought to convert the RPs into appeals. This conversion was denied.
Submissions by the Counsels for the accused:
A1: It was stated there were contradictions and omissions in the evidence of the victim. The allegation that she was picked up from a public road was highly improbable as there are houses on both sides. Further, it was alleged that she was manhandled before the act of harassment. However, nothing showed that she had suffered bodily injury. She also had different versions in the FIS and her deposition. She and her mother admitted that an earlier complaint filed but was not proceeded with. It was made for defamation and no allegation of sexual harassment. The second complaint was a mere afterthought intended to wreak vengeance. According to the accused, there was a dispute with the mother regarding property lying adjacent to her residence which was purchased by the third accused; the first being the broker.
A2: Stated that there was no evidence to prove that the victim was a minor or below 16 years. The medical report indicated only a possibility of sexual intercourse, but there was nothing to connect the accused with the incidents dating back to more than 2 years. There was never an allegation that two of the accused together ravished the victim.
A3: Stated that some people of the locality required the victim’s mother to bestow more attention to the victim, however; no one was examined to furnish a reason for such a warning. Her father was also not examined. The mother had also named a few more people apart from the first 4 accused, but none were implicated. There was no allegation of rape and only complain of sexual abuse, which does not bring in the essential ingredient of penetration. The medical report did not attribute that the accused had any sexual intercourse with the victim.
A4: Stated the uncertainty of the charges framed against that accused, alleging serious prejudice. Even the prosecution did not have a case that the third and fourth accused committed and attempted to commit rape on her.
A5: Stated that the accused was incapable of committing such a sexual act due to medical incompetence. He was a known person in the community as well as to the mother. His name was not added in the FIR until much later. He had been falsely implicated in an attempt to intercede in the dispute between the other accused and the mother.
The counsel started by pointing out the degradation of moral values, which in the present case was at an all-time low. A minor school-going girl was subjected to rape by the accused on multiple occasions. The accused were also of the age equivalent to her father and grandfather. The delay in registering crime was the natural fear of loss of face, considering the nature of offence and age of the child. The omissions in the FIS were not significant as not everything could be stated in the statement. The prosecution had, beyond any reasonable doubt, proved the offences against all the accused.
The mother had also provided clear evidence of her birth date. The deviant nature of the offence demanded that the evidence be appreciated keeping in mind the trauma suffered by the victim, a minor child. The entire accused acted in consort and the trial Court had found that though the incidents are separate, it is a planned action of A1 to A5. The assault commenced sometime when she was studying in the 9th Standard and continued till three months before the registration of the FIR. There is no reason to limit the sentence to that awarded by the trial Court.
Decision of the Court:
To give a fair decision, the Hon’ble Judges K.Vinod Chandran and M.R.Anitha, looked at the complete facts, the evidence presented and the impugned trial court judgement.
They also looked at various questions raised, such as the scope of Sec. 376(2) (g) of IPC, insufficiency of charges, acceptability of the date of birth, the FIS, medical evidence and precedents. Looking at it, it was seen that the incidents had occurred with all the accused, however, the common intention couldn’t be established between all accused. Yes, there were times when the accused paired up and knew about what others had done, but that was not sufficient to prove common intention.
There were also several inconsistencies seen in the evidence from the victim and the mother. The contradictions and omissions compelled the bench to decide in favour of the accused. The benefit of the doubt was granted, thereby acquitting them of all charges.
The order of the trial court was set aside and the victim’s revision of plea was dismissed. The accused were to be released from custody.
Story by Sai Kulkarni-Inter