Kerala High Court reduces sentence awarded to priest Robin Vadakkamcherry accused of minor's rape

The Kerala High Court on Wednesday reduced the sentence awarded to former priest Robin Vadakkamcherry of the St. Sebastian Church who was convicted for sexually assaulting, raping and impregnating a minor girl in 2016. (Robin Mathew v State of Kerala).Justice R Narayana Pisharadi altered the conviction and sentencing of the accused under Section 376 (2)(f) of Indian Penal Code to offences under Section 376(1) reasoning that merely because he was the vicar at the parish attended by the minor survivor, he cannot be considered as a person in a position of trust or authority. "Section 376(2)(f) of the Indian Penal Code 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. Merely for the reason that the appellant/accused was the priest/vicar of the local church, it cannot be found that he had held any position of trust or authority towards the victim girl," the Court said.Moreover, it noted that the trial court, while finding accused not guilty of the offence under Section 5(p) of the Protection Of Children from Sexual Offences Act, made a categorical finding that the appellant/accused cannot be regarded as a person in position of trust or authority of the victim. .The Court ordered as followsConviction by the trial court for the offence under Section 376(2)(f) of the IPC is altered to conviction under Section 376(1) of the IPC;Conviction of the appellant by the trial court 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 is confirmed;In supersession of the sentence awarded by the trial court for different offences, the appellant/accused is sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ₹ 1 lakh 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..The court issued the order on an appeal filed by the accused who was the Vicar of St. Sebastian Church at Kottiyoor in Kannur District. He was accused of committing the offences of penetrative sexual assault and rape on a teenage girl of the parish. The trial court convicted and sentenced him for the offences punishable under Section 376(2)(f) of the IPC and also under the relevant provisions of the POCSO Act. .The prosecution case was that Vadakkumcherry was the priest at the parish when he raped the girl who was a minor at the time of the incident.The girl who had just completed her class 10 exam had gone to the parsonage for some work when the priest took her to his bedroom and raped her.He then told the girl not to reveal the incident to anyone. Subsequently, the girl had become pregnant and a DNA test revealed that Vadakkumcherry was responsible.However, when the survivor was examined as a prosecution witness, she turned hostile stating that the intercourse was with her full consent..The case attracted much public outcry after the survivor approached the Supreme Court expressing willingness to marry the accused. Vadakkamcherry had also filed a petition seeking suspension of his sentence so that he can marry the survivor. However, the apex court had rejected both the pleas..Since consent of a minor for sexual relationship is immaterial and inconsequential, the crucial question before the High Court was whether the prosecution could legally prove the date of birth of the victim..Before analysing the evidence adduced by the prosecution with regard to the date of birth, the legal aspects with regard to proof of the age of a victim of sexual assault, was taken note of by the Court..The observations of the Court in this regard are summarised belowIn Jarnail Singh v. State of Haryana, after making a reference to Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, the Supreme Court held that “Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime"In Mahadeo v. State of Maharashtra, the top court stated, "In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well"At the point of time when these judgments were delivered, the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act) and the Rules thereunder were in force. The Act of 2000 has since been repealed and has been replaced by the JJ Act, 2015. The provisions contained in Rule 12(3) of the JJ Rules, 2007 framed under the the JJ Act, 2000, with certain modifications, are engrafted into Section 94 of the JJ Act, 2015. The incident took place in May, 2016, after the JJ Act, 2015 came into force.Therefore, the principles of law laid down in Jarnail Singh and Mahadeo would apply with equal force to the provisions of Section 94(2) of the the JJ Act, 2015. As such, the provisions contained in Section 94 of the JJ Act, 2015 have to be applied to determine the age of the survivor as on the date of the incident.However, that with regard to the applicability of Section 94 of the JJ Act, 2015, the Division Bench of the Kerala High Court has taken a different view in a series of decisions rendered recently.Most recently, in K Raghavan v. State of Kerala it was held that the rigour of the certificate from the school first attended as declared by the Hon'ble Supreme Court has to survive repeal of the Rules of 2007 and the fresh provisions, incorporated in the JJ Act, 2015 cannot be availed of to determine the age of the victim under the POCSO ActThe dictum laid down in the decisions of the Supreme Court in Jarnail Singh and Mahadeo, "according to me, is only that the provisions contained in the JJ Act, which are prevailing at the relevant time, for determination of the age of the juvenile or child in conflict with law can be adopted for determination of the age of the victim also", the judgement stated. .Justice Pisharadi recorded his disagreement with the division bench decisions of the Court stating, I find no logic in finding that, even after the repeal of a statute and even after a new statute coming into force, the provisions of the repealed statute have to be followed even in a case where the incident has taken place after the new statute came into force. Law cannot be static. Law is dynamic and it is expected to diligently keep pace with time. It has to evolve and change with the needs of the society.".Moreover, keeping in mind the object of the POCSO Act, the line of thinking that adopting the provisions under Section 94 of the JJ Act, 2015 for determination of the age of the victim would cause prejudice to the accused, cannot be accepted, he said..Inspite of the above view, in order to comply with judicial propriety and discipline, the single judge was compelled to follow the decision of the Division Bench in K Raghavan..Considering the facts of the case, the Court found that the prosecution could prove beyond reasonable doubt that the accused committed sexual intercourse with the victim who was then aged below 18 years and sentenced the accused accordingly..[Read judgment]