Rape survivor habituated to sexual intercourse or being of easy virtue not grounds to absolve accused: Kerala High Court

The Kerala High Court recently held that a rape survivor's sexual history is immaterial in a rape case and will have no bearing on the credibility of testimony of such survivor (Unnikrishnan v. State of Kerala)..Single Judge Justice R Narayana Pisharadi held that a rape survivor being habituated to sexual intercourse or being "a girl of easy virtue" would not be grounds to absolve an accused of rape charges.The Court categorically held that even when a survivor admits in cross-examination that she has had sexual relationships with another person previously, the same does not in any way affect the credibility of her testimony. "Even in a case where it is shown that the victim is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. Even assuming that the victim is previously accustomed to sexual intercourse, that is not a decisive question. On the contrary, the question which is required to be adjudicated is, did the accused commit rape on the victim on the occasion complained of. It is the accused who is on trial and not the victim," the judgment stated. The Court, therefore, upheld the conviction of one Unnikrishnan accused of raping and impregnating his own daughter..It is the accused who is on trial and not the victim.Kerala High Court.The Court went on to assert that the evidence given by the survivor need not be viewed with the same amount of suspicion as that of the accused. "Her evidence need not be tested with the same amount of suspicion as that of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. Only if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony," the judgment said..In the instant case, the survivor, a minor, had alleged that her father had repeatedly raped her leading to her pregnancy and she eventually gave birth to his child.It was also pointed out that DNA evidence proved that father was indeed responsible for the pregnancy.Upon registration of complaint by the daughter with the police, the trial court found the accused guilty of offences punishable under Sections 376 and 506(ii) of the Indian Penal Code and also under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act and sentenced him accordingly.Thereafter, the accused approached the High Court challenging the same..The Court commented on the heinousness of such crimes where protector turns predator."There can never be more graver and heinous crime than the father committing rape on his own daughter. The protector then becomes the predator. The father is the fortress and refuge of his daughter. Charged of raping his own daughter under his refuge and fortress is worst than the gamekeeper becoming a poacher and treasury guard becoming a robber," the Court said..The Court examined the contentions raised in the appeal and found as follows:.Testimony of the VictimThe victim had stated that her father had committed sexual assault on her repeatedly, including penetrative and oral rape, and had threatened to kill her if she disclosed the same to anyone. It was only after becoming pregnant that she was able to reveal the same to her mother and aunt who took her to the police. The Court found that no contradiction or omission had been brought out in the testimony of the victim with reference to first information statement given by her to the police..Delay in Lodging FIRThe Court held that delay per se cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity in a case such as the instant one which involves incestuous rape. "The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the victim and the honour of her family," the judgment said.Moreover, the victim had explained the reason for the delay in her first information statement itself.The Court also said that since the defence hadn't questioned the victim in cross-examination regarding this delay, it cannot later raise any grievance on that point as has been settled in Paulmeli v. State of Tamil Nadu..Habituated to sexual intercourse irrelevant The Court also acknowledged the fact that the victim had admitted to sexual relations with another person."Even assuming that the victim is previously accustomed to sexual intercourse, that is not a decisive question. On the contrary, the question which is required to be adjudicated is, did the accused commit rape on the victim on the occasion complained of. It is the accused who is on trial and not the victim as held in State of UP v. Pappu," the Court stated..Failure to prove age and consent of victimThe Court cited the decision of the Supreme Court in Jarnail Singh v. State of Haryana in which it was held that extract of the admission register from the school which was first attended by the victim, would be sufficient proof for determining the age of a child, who is a victim of a crime.Following this decision, in Alex v. State of Kerala, a Division Bench of the Kerala High Court also held that, the document produced to prove the date of birth or the age of the child victim, shall be the certificate from the school which the child first attended.In the instant case, the certificate provided by the prosecution did not satisfy this requirement as a consequence of which, the Court found that it could not convict the accused for offences under the POCSO Act. .After establishing that the age of the victim hadn't been sufficiently proved, the accused raised a plea of consent which the Court dismissed stating,"In the present case, the plea of consent is too shallow to even need detailed analysis or consideration. One cannot even imagine that the victim girl consented to have sexual intercourse with her father. There is gulf of difference between consent and submission. Every consent involves a submission but the converse does not follow. Helplessness in the face of inevitable compulsion clouded by fear cannot be considered to be consent as understood in law. Exercise of intelligence based on the knowledge of the significance and the moral effect of the act is required to constitute consent.".Upon consideration of the offences proved in the case, the Court allowed the appeal in part by upholding the conviction under Section 376(1) IPC and set aside the conviction under the POCSO Act and Section 506(ii) IPC.It sentenced the accused to 12 years rigorous imprisonment and fine of ₹50,000. .[Read Judgment]