Kerala HC Upholds 7-Year Rape Sentence, Infers Victim Was Won Over When She Denied Assault On Recall

The prosecution alleged that on 3 May 2013 the appellant, an autorickshaw driver, sexually assaulted PW4, who was then 17 years old.

The Additional Sessions Court–I, Kasaragod convicted him under Section 376(1) of the Indian Penal Code (IPC) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), imposed seven years’ rigorous imprisonment and a fine, and acquitted him of the charge under Section 366A IPC.

On appeal, the State Brief challenged the conviction, relying principally on PW4’s and her sister’s denials when recalled for further cross-examination, a discrepancy in PW4’s name on her birth certificate, defence evidence that the appellant had been assaulted, and an objection to territorial jurisdiction.

The appellant’s counsel reported no instructions; the High Court appointed a State Brief and heard the appeal on the record and submissions.

The Court considered Section 376(1) IPC and Section 4 of the POCSO Act, together with the POCSO Act’s definition of a “child” in Section 2(1)(d) and the application of Section 42, which the trial court had invoked to impose no separate sentence under the POCSO Act.

It treated proof of PW4’s age as relevant to the POCSO charge and held that the birth certificate could establish her age despite a minor discrepancy in her name, particularly where the parents’ names matched and other evidence did not undermine her age.

In assessing the contradictory versions given by PW4 and PW5 after recall, the Court accepted the prosecution’s submission that a witness who retracts earlier supporting evidence after recall may have been won over, and that the later evidence need not be acted upon.

It also considered the medical evidence of vaginal penetration and the statutory minimum sentence applicable under Section 4 POCSO before its amendment effective 16 August 2019.

The Court regarded PW4’s original testimony as candid and consistent: she described the assault, identified the appellant, and identified the clothes she had worn.

It declined to rely on her later denial, and on PW5’s similar retraction, treating those accounts as evidence given after the witnesses had been won over; it also noted that the further cross-examination followed an order permitting questioning on specified matters.

PW1’s examination of PW4 approximately five hours after the incident disclosed an injury and evidence of vaginal penetration, which the Court considered corroborative of PW4’s original account, notwithstanding the doctor’s concession that hymenal rupture could have other causes.

The Court found that the birth certificate sufficiently established PW4’s age and that the defence evidence concerning the appellant’s assault did not displace the prosecution case; it considered that assault to have occurred after the alleged sexual assault.

It rejected the territorial-jurisdiction objection, finding the available evidence supported occurrence within Kerala and observing that the issue had not been raised at trial.

It confirmed the seven-year sentence and fine, vacated the suspension of sentence and bail, cancelled the bail bond, and directed the appellant to appear before the Special Court to serve the sentence, failing which the Special Court was to execute it.