Accused 'Exploited Vulnerability': Kerala High Court Sentences Four To 30 Yrs Rigorous Imprisonment For Gang Rape Of Migrant Woman

The Kerala High Court has convicted four accused to rigorous imprisonment of 30 years under Section 376D of the IPC for committing the offence of gang rape on a migrant woman worker in 2015. The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice Syam Kumar V.M. relying upon the Apex Court decision in Patan Jamal Vali v. State of Andhra Pradesh (2021), considered the intersectional identity and vulnerability of the victim who was a migrant worker on whom sexual assault was committed.The Court stated that the migrant woman, a mother of two children migrated from Tamil Nadu to Kerala in search of work is placed at an intersection of varied identities and is most vulnerable. It thus stated that the accused do not deserve any leniency in punishment since they have exploited the underlying inequality and vulnerability of the migrant woman. “She possesses all the vulnerabilities that an individual of such a migrant labourer group usually suffers from including linguistic handicap and socio-cultural alienation which the accused preyed upon, on the fateful day when she had been out looking for work so as to sustain herself and her family. It is clearly discernible from the evidence that the accused had targeted the most vulnerable in the locality viz., migrant women labourers, and had lured PW1 and PW2 under the pretext of offering them a job, exploiting the situation whereby the very nature of their avocation required them to travel to isolated unknown places along with, and on the instruction of, strangers….. the victim in this case, squarely falls within that subset and she finds herself placed at an intersection of varied identities as a woman from another State, with limited linguistic capabilities to understand and interact with the people in this State and as a laborer belonging to one of the socially, culturally and financially weaker sections of society.”The allegation was that the four accused who were aged 22, 28, 21 and 28 years in furtherance of their criminal conspiracy committed offences of abduction, rape and robbery on two migrant women labourers who were waiting for anticipation of work near Edapally Toll in Ernakulam. The accused on the pretext of giving work of cutting grass took the two women in their auto and committed rape on one woman, took her nude photographs and robbed their gold ornaments. Accused 5 and 6 who had this knowledge harbored the accused, permitted them to reside in their house and assisted in concealing stolen ornaments. The accused 1 to 4 were sentenced and convicted by the Trial Court under Sections 120B (1), 366, 376D, 394, 323 and 342 of the Indian Penal Code. They were imposed with rigorous imprisonment for life which shall mean imprisonment for the remainder of their natural life. Accused 5 and 6 were also sentenced and convicted under Section 212 read with Sections 34, 411 and 414 of IPC. The Counsel for the accused argued that there was no evidence of the commission of gang rape on the woman. It was argued that the injuries do not suggest gangrape and there were no injuries on private parts. It was also argued that there was ambiguity regarding the date of the alleged incident, lack of proper test identification parade and inconsistencies in their testimonies. It was also argued that the Trial Court imposed a maximum punishment sentence of imprisonment for the remainder of the life without giving reasons. The Court stated that rape is not just physical assault but also destructive of the whole personality of the victim. It stated that Courts should not get carried away by minor contradictions or significant discrepancies that are not fatal to an otherwise reliable prosecution case. The Court was satisfied with the evidence of the second woman who was an eyewitness to the incident. It stated that if the evidence of the victim inspires the confidence of the Court and is free from doubt, there is hardly any need to corroborate it. It stated that gang rape is separately dealt with more stringent punishment under Section 376D of the IPC through the 2018 amendment. It is punishable with imprisonment of not less than 20 years and would extend to life which means imprisonment for the remainder of natural lifeIn the facts of the case, the Court rejected the defence argument that there were no injuries suggesting gang rape. It said, “It is trite that victims of sexual assaults do not react in any standard way, and one cannot expect a uniformity in the manner in which such victims of sexual assault react in situations where there is a threat of bodily injury. Physical manifestations of violent struggles are not a necessary pre-condition for entering a finding of gang rape.”The Court went on to state that as per 376D, even if a woman was raped by only one among a group of persons who were acting in furtherance of common intention, each of them would be liable to have committed the offence of rape. “Thus, the alleged discrepancy in the testimony of the...

Accused 'Exploited Vulnerability': Kerala High Court Sentences Four To 30 Yrs Rigorous Imprisonment For Gang Rape Of Migrant Woman

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