[POCSO] Karnataka High Court orders 10-year jail for father who raped his 14-year-old daughter

The Dharwad Bench of the Karnataka High Court recently convicted a man accused of sexually assaulting his 14-year-old daughter [State of Karnataka v Asif Rasoolsab Sanadi].The Division Bench of Justice HT Narendra Prasad and Justice Rajendra Badamikar overturned the acquittal of a special court and sentenced the accused to rigorous imprisonment of 10 years and fine of ₹50,000 for offences of rape under Section 376(1) of the Indian Penal Code and aggravated penetrative sexual assault under Section 6 of the Protection of Children from Sexual Offences Act (POCSO). "Court cannot ignore trauma undergone by tender aged child by such inhuman act. The courts should be very sensitive in such cases, when evidence of victim is consistent and reliable. Under such circumstances, the entire approach of the trial court is erroneous, perverse, capricious and from the initial stage itself, the trial court has proceeded with biased mind against the victim girl, which cannot be accepted," the High Court said while convicting the accused.The Court held that the trial court had failed to appropriately appreciate the evidence of the witnesses, and had erred in permitting the cross-examination to take place after a significant lapse of time."On perusal of the judgment of the trial court, it is evident that the trial court did not consider the position of the child and the trauma undergone by the child while facing sexual assault. Further, the trial being conducted by the trial court in such a casual manner that all the witnesses were recalled after 7 months and such attitude is deprecated by the Hon’ble Apex Court. The reasoning of the trial court does not inspire the consciousness of the court and the trial court on surmises and assumptions presumed certain things and acquitted the accused," the judgment said. .The State has filed an appeal challenging the judgment of acquittal passed by the Sessions Judge. The case of the prosecution was that the the accused had been sexually assaulting his daughter for 9 months, and had wrongfully confined her in a house to sexually assault her. The mother of the child was deaf and dumb. When the child was at her maternal grandmother's house, the accused went there to take her back home, upon which she refused to accompany him, and disclosed the sexual assault to her grandmother. The grandmother took the child to the police station and a complaint was lodged against the father. .Following the filing of the complaint, investigation was conducted and a chargesheet was submitted against the accused for offences punishable under Sections 376(1) (rape), 342 (wrongful confinement) and 506 (criminal intimidation) of the Indian Penal Code (IPC) and Sections 4 (penetrative sexual assault) 8 (sexual assault) and 12 (sexual harassment) of the Protection of Children from Sexual Offences Act, 2012 (POCSO).After hearing the arguments, the Special Judge decided that the evidence of the victim, the grandmother, and other witnesses, including the medical evidence was not trustworthy and acquitted the accused for the offences alleged against him. Aggrieved by the acquittal, the State appealed to the High Court. .The State contended that the judgement and order of acquittal was contrary to law, the facts, and the evidence on record, and that sufficient material had been placed by the prosecution, which was ignored by the trial court. The counsel for the respondent-accused argued that the victim-girl was a tutored witness, and considering the animosity between the accused and the maternal grandmother of the child, her evidence could not be trustworthy. He also said that just a day before the Section 164 statement of the victim, she had undergone medical examination where it was noted that she had depression. The very next day her statement was recorded which established that she was tutored, and her competency to give a statement was not recorded by the Magistrate, he submitted..The court framed the following questions for consideration: i) Whether the prosecution proved the guilt of the accused for the offence punishable under Sections 376(1), 342 and 506 of IPC and Sections 4, 8 and 12 of POCSO Act as alleged beyond all reasonable doubt?ii) Whether the judgment and order of acquittal passed by the trial court is perverse, erroneous and arbitrary?.While considering the case, the Court noted that initially, the child witness had not been cross examined by the defence. However, she was recalled as a witness after 7 months for a cross examination, during which she admitted that the accused-father used to take care of her, advise her not leave the house in the evening, and was strict with her. .It was further elicited from the child that the relationship between her grandmother and the accused father was not cordial, that they would quarrel regularly and he used to advise her not to visit the grandmother. Even on the date of lodging the complaint, they had quarreled. However, in her examination in chief, the child had deposed regarding the sexual assault committed by the accused, the Court noted. .The Court noted that although the defence cross examined the victim and elicited testimony regarding the strained relationship between the grandmother and the accused, and that the complaint was lodged at the instance of the grandmother, the incidents of sexual assault had not been denied by the child.It was suggested that the allegations were as per the say of the grandmother, but when a suggestion was made to the child that the accused never behaved indecently with her, she denied it. "Hence, it is evident that the accused tried to win over the victim in these 7 months and there was an attempt, but the evidence discloses that the accused did committed sexual assault on the victim," the Court observed. .The Court said that the Magistrate who had recorded the statement of the victim had deposed that when the child was brought to the court along with her grandmother by the police, she was crying. For ten minutes, she consoled the victim and the girl expressed her willingness to disclose the incidents of sexual assault, which was recorded by the Magistrate. "Interestingly, though the evidence of this witness recorded on 23.01.2016, the cross examination was held on September 8, 2016 after recalling the witness. It discloses that, defence has developed a tendency not to cross-examine the witnesses on the same day and the conduct is completely against the intention of the legislation in incorporating Section 309 of CrPC", the Court noted. The Court further noted that since it was statement under Section 164 of CrPC, administration of oath is permissible as the statement is given by the victim and not by an accused..The Court said that the evidence of the victim, the judicial officer who recorded her statement, the medical officer, and the grandmother of the victim were all relevant, and that their evidence was consistent.The victim girl and the grandmother both supported the case of the prosecution, there was no denial of the sexual assault during the cross examination, and there was no reason for the two witnesses to give false evidence, the Court further observed..It also did not accept the arguments regarding the dispute between the grandmother and the accused, and how their animosity influenced the victim girl. The grandmother is the mother-in-law of the accused, and there are no strong circumstances to show that she would risk the life of her granddaughter and daughter, the Court said.Further, there was no reason for the victim to give evidence against her own father, the court noted, while observing that the 164 statement, the evidence of the victim, and the complaint were all in consonance with each other. .The Court noted that the trial court had not considered the position of the child and trauma she underwent while facing sexual assault. The trial court failed to consider the fact that there was no reason for her to give false evidence against her own father. .Referring to the judgement of the Supreme Court in Vinod Kumar v. State of Punjab, the Court noted that there are guidelines for conducting a criminal trial, and that witnesses must not be called for cross examination after a long span of time, as it is against the concept of a proper and fair trial:"In fact, it is not all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in- chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination," the Court said..In the present case, the victim and other witnesses were called for cross examination after a long span of time, the court noted, terming the conduct of the trial court as mechanical, and one which allowed a miscarriage of justice..The Court, thus, allowed the appeal of the State and sentenced the accused under Section 376(1) of the IPC read with Section 6 of POCSO. .Additional Special Public Prosecutor VM Banakar represented the State and Advocates ZM Hattarki and Mahantesh Hiremath represented the accused. .[Read Judgment]