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An Inconsistency In The Statement By Minor In Sexual Assault Does Not Let The Accused Escape From Punishment: Kerala HC
An appeal was filed by the sole accused in the case Shiju v. State of Kerala, challenging his conviction and sentence. The accused named ‘Shiju’ was a cousin brother of the victim, a minor girl aged 15 years. He sexually assaulted her on 2nd November, 2016 at about 8 am and the offences alleged against the accused were the offences punishable under Sections 376(2)(f) and 376(2)(i) of the Indian Penal Code, 1860 (IPC) and Section 5(n) read with Section 6 and Section 9(n) read with Section 10 of the Prevention of Children from Sexual Offences Act, 2020 ( the POSCO Act).
The guilt of the accused was proved by the prosecution after examining 17 witnesses and proved through them 15 documents. The 17 witnesses comprise of the victim girl herself, the doctor who examined the witness girl after the occurrence on the same day, one of the teachers in the school where the victim girl was pursuing her studies, the headmistress of the school, the mother of the victim girl, her relatives especially her aunt, the village officer who prepared the site plan, the Childline Member who reported the incident to the police, the investigating officer, etc. Among the documents proved, the statement given by the victim girl was recorded under Section 164 of the Code of Criminal Procedure,1973 and the report of the medical examination along with the report of the forensic science laboratory concerning the dress allegedly worn by the accused and the victim girl at the time of occurrence of offence was attested under the Section 154 of the Code of Criminal Procedure, 1973.
On the examination of the materials on record, the accused was convicted for the above offences and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of ?10,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months each for the offences punishable under Sections 376(2)(f) for “committing rape on a woman when she is under twelve years of age” and 376(2)(i) for “committing rape on a woman incapable of giving consent” of the IPC. However, the separate sentence was not awarded for the offences punishable under the POCSO Act.
It was submitted by the counsel on behalf of the appellant-accused that as regards to the elemental aspect of the crime, i.e., the sexual assault, the only evidence available in the case is the evidence girl who was not consistent with her two previous statements given by her. Though the inconsistencies by the minor girl are not trivial in nature, significant, and therefore, the victim girl cannot be considered as a sterling witness to rest the conviction of the accused solely based on her evidence. The learned counsel further submitted that the report submitted by the medical doctor after examining the victim girl does not support the case of the prosecution that the accused has committed the vaginal penetration. It was also pointed out that the report of the forensic science laboratory regarding seized undergarments of the accused was not given any reliance by the court.
On the contrary, the Public Prosecutor supported the decision of the court and pointed out that the inconsistencies in the statements of the victim girl are trivial in nature and the same is not sufficient to ignore the evidence tendered by the victim girl. It was further submitted that the evidence procured by the doctor in her report is supporting the evidence procured by the victim girl.
Observations of the Court:
It was observed by the Court that the victim was the cousin of the accused and she was residing in her family house where the mother of the accused was also residing and she was studying in the high school classes. When she was about to leave her house for school, the accused came to the room of the victim girl through the back door of the house and sexually assaulted her by penile-oral penetration. Being traumatized, she could not control her emotions in front of her friends and teachers in school, where the matter was informed to the police.
The doctor who examined the minor girl deposed in her reports that “Swelling and congestion of the mucosa at the introitus, the clitoris and the labia minora are caused by genital stimulation, but they may also be caused by digital stimulation or masturbation”.
Pointing to the contention made by the counsel on behalf of the appellant-accused that the victim was inconsistent in her statements and was repeatedly changing it while questioning, the Court pointed out that “One should consider the condition of the mind of a girl aged 15 years, who was subjected to an unexpected sexual assault and the deeply distressing and disturbing experience to which she was undergoing on account of the said assault”. Additionally, in case of falsely implicating the accused, the court observed that the evidence is, in essence, one and the same, hence the contentions of the appellant was outrightly rejected.
It is true that the doctor had not given any final opinion on the basis of injuries noted by her in the examination of the victim girl. However, it was stated by the doctor that there was hymen congestion and also redness in the hymen and this is sufficient for the Court to hold that the medical evidence, in this case, supports the statement given by the victim. An attempt at penetration is sufficient to make out a case of rape in terms of Section 375 amended as per Act 13 of 2013 of the IPC and in terms of the POCSO Act. Similarly, the reason that there was no rupture of hymen, it cannot be said that there was no rape.
Judgment:
From the above observations, the Court held that “even while the evidence of the victim in a rape case commands great respect and acceptability, if there are circumstances which cast some doubt in the mind of the court as to the veracity of the same, the court shall not rely on the same without corroboration”. Hence, it was held that the prosecution has established the guilt of the accused beyond reasonable doubt, and therefore, the appeal is devoid of the merit and the same is accordingly dismissed.
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