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Delay In Reporting Sexual Offences To Be Viewed Differently, Can't Be Equated With Delay In Other Cases: Kerala High Court

Hannah M Varghese
5 July 2022 7:27 AM GMT
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The Kerala High Court last week observed that the delay in reporting sexual offences should not be viewed as strictly as in other offences and that it would only become fatal in a case where the authenticity of the prosecution version is uncertain.

Justice Kauser Edappagath remarked that this was so because, in a traditional society like ours, it was not reasonable to disbelieve the incident merely because there was a delay in filing the complaint.

"The delay in sexual offence has to be viewed differently. The delay in a case of sexual assault cannot be equated with a delay in a case involving other offences since several factors weigh on the mind of the victim and members of her family. In a tradition bound society like ours, particularly in rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there was a delay in lodging the FIR. The delay becomes fatal only in a case when there is doubt as to the genesis or genuineness of the prosecution case."

The prosecution case in short is that in 2006 and 2014 respectively, the accused sexually assaulted his minor daughter at their residence on repeated occasions. The crime was registered based on the girl's statement given to the Sub Inspector of Police. After investigation, the final report was filed at the Additional District and Sessions Court.

The trial court found the accused guilty under Section 9(n) of the POCSO Act and sentenced him to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.25,000/- in default to suffer simple imprisonment for three months under Section 10. The accused moved the High Court challenging the said conviction and sentence.

Advocates T.U Sujith Kumar and Dinesh G Warrier appeared for the accused and argued that the conviction is based on the uncorroborated testimony of the child witness which suffers from contradictions and omissions. They further submitted that there is an inordinate delay in reporting the matter and lodging the FIR, the benefit of which should go to the accused.

On the other hand, Public Prosector Bindu O.V argued that the prosecution had succeeded in establishing and proving the case beyond reasonable doubt.

The Court noted that the prosecution case was mostly built on the evidence of the child and her mother to prove the incident and to fix culpability on the accused. It was found that although the girl was cross-examined at length by the counsel for the accused, she gave a reliable, consistent, and credible version of the crime which inspires confidence.

"It is settled that, the evidence of a victim of sexual offence is entitled to great weight, absence of corroboration notwithstanding. It is equally settled that the statement of a child witness should be scrutinized with great care and caution. At the same time, it must be taken note of that, children by their inherent nature are honest. Corroboration of the testimony of the child witness is not a rule but a measure of caution and prudence is a well-accepted principle."

Regarding the issue of delay, the Court recalled that the failure to mention the exact time of occurrence of the incident which happened while she was 7 years old does not create doubt in the prosecution case.

It was also found from her statement that she was very ashamed to complain about such acts against her father to others. Thus, the Judge held that there was nothing on record to doubt about the genesis or genuineness of the prosecution case on account of the alleged delay.

Therefore, the conviction and the sentence imposed on the accused by the trial court were confirmed and the appeal was thereby dismissed.

Case Title: XXX v. State Of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 323

Click Here To Read/Download The Order

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