Kerala High Court: In an infamous case of sexual assault whereby the priest of the St. Sebastian Church had impregnated a minor girl, R. Narayana Pisharadi, J., upheld the conviction of the accused. The Bench, however, reduced the sentence of 20 years rigorous imprisonment awarded to the accused to 10 years rigorous imprisonment.
The appellant, a Vicar of St. Sebastian Church was indicted for committing the offences of penetrative sexual assault and rape on a teenage girl of the parish; consequently, the victim became pregnant and gave birth to a male child on 07-02-2017. The Trial Court convicted and sentenced the appellant for the offences punishable under Section 376(2)(f) of the Penal Code, 1860 and also under Section 3(a) read with Section 4 and Sections 5(f) and 5(j)(ii) read with Section 6 of the POCSO Act, 2012. The Trial Court had sentenced the accused to undergo rigorous imprisonment for a period of twenty years and to pay a fine of Rs.1,00,000.
In the instant appeal, the appellant contended that the sexual intercourse took place with full and unqualified consent of the victim. On cross-examination by the accused, the victim categorically stated that it was with her full consent that the accused made sexual intercourse with her and that she had got no complaint against the accused.
Noticing that the victim girl told the police that her own father had committed rape on her and that the father of her child was her own father, while the medical report had proved the accused was the father of the child and the paternity was admitted by the accused himself, the Bench observed,
“In the instant case, from the very beginning, there has been attempt on the part of the family of the victim to save the accused, who was the vicar of the local church, from the clutches of law.”
Whether the Victim was minor at the time of the incident?
According to the prosecution, the date of birth of the victim was 17-11-1999, following documents had been produced to prove juvenility of the victim at the time of the incident:
- Extract of the birth register which is kept in the local authority (Ext.P14) and
- Certified copy of the admission register maintained at the I.J.M Higher Secondary School, Kottiyoor.
Noticing that the age of the victim given in the church was during baptism was 17-11-1999, the Bench stated that the entry regarding the date of birth of the victim shown in the birth register, which was supported by the live birth report prepared at the hospital where the victim was born and also the evidence of the doctor who attended the delivery, proved beyond reasonable doubt that the date of birth of the victim was 17-11-1999 and not 17-11-1997.
Since the accused had made sexual intercourse with the victim in May, 2016 and the victim delivered the child on 07-02-2017, the Bench held that the victim was aged below 18 years and a child as defined under Section 2(d) of the POCSO Act, when the accused had sexual intercourse with her, that is, in May, 2016, therefore, the sexual act between the accused and the victim would not fall under the definition of consensual act. However, noticing that Section 376(2)(f) of IPC is attracted when a person who being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman, the Bench held that merely for the reason that the accused was the priest/vicar of the local church, it could not be found that he had held any position of trust or authority towards the victim.
Verdict
Consequently, the appeal was allowed in part and the Bench passed following orders:
- Conviction of the accused under Section 376(2)(f) of the IPC was altered to conviction under Section 376(1).
- Conviction of the accused under Section 3(a) read with Section 4 and under Sections 5(f) and 5(j)(ii) read with Section 6 of the POCSO Act was confirmed.
- In supersession of the sentence awarded by the Trial Court for different offences, the accused was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000 and in default of payment of fine, to undergo rigorous imprisonment for a period of one year for the offence under Section 5(j)(ii) read with Section 6 of the POCSO Act. [Robin Mathew v. State of Kerala, 2021 SCC OnLine Ker 4720, decided on 01-12-2021]
Appearance by:
Counsel for the Appellant: B.Raman Pillai (Sr.), R.Anil, M.Sunil kumar, K.John Sebastian, Sujesh Menon V.B., T.Anil Kumar, Thomas Abraham (Nilackappillil), E.Vijin Karthik, Thomas Sabu Vadakekut, Manju E.R. and Mahesh Bhanu.S
Counsel for the State: Ambika Devi S, Spl.Gp Atrocities Against Women & Children & Welfare Of W & C, Nandagopal S.Kurup, P.Chandrasekhar, Sandhya Raju, K.K.Mohamed Ravuf, Government Pleader, K.Vidya and Shri.Satheesh V.T.