Protection of Children from Sexual Offences Act 2012 (Pocso Act) – The consequence of not proving the age of the victim is that the accused cannot be found guilty of any offence under the Act. [Para 40]
Protection of Children from Sexual Offences Act 2012 (Pocso Act) – Section 6 – Penal Code, 1860 – Sections 376 and 506 – Delay in Lodging FIR – Delay, per se, is not a mitigating circumstance for the accused in a case of sexual assault. Delay in lodging the F.I.R cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once there is explanation for the delay in lodging the F.I.R, the court is only to see whether such explanation is satisfactory or not. Mere delay in lodging the F.I.R does not in any way render the prosecution version brittle. [Para 17]
Criminal Trial – When the defence did not put any question to the witness in the cross-examination on a material point, it cannot subsequently raise any grievance on such point. [Para 19]
DNA test – If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted. [Para 31]
Consent – 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. [Para 44]
Facts of the Case
There can never be more graver and heinous crime than the father committing rape on his own daughter. The prosecution case is that, the accused, the father of the victim girl, repeatedly committed sexual assault and rape on her. The girl got pregnant. She delivered a male child. No girl would have wanted the world to know that she was a person subjected to sexual assault by her own father. She had stated to the police that her father used to threaten her that he would kill her and it was the reason for the delay in reporting the matter to the police. No girl would falsely accuse of her own father of committing rape on her. The result of the DNA analysis reveals that the accused is the biological father of the child born to PW1. One cannot even imagine that the victim girl consented to have sexual intercourse with her father.
Case Law : Unnikrishnan v. State of Kerala
Bench : R.NARAYANA PISHARADI; J.
Case Number : Crl.A No. 242 of 2019; 11 October 2021
Link : https://keralacourt.com/2021/10/292/