1 Dec 2021 5:09 PM GMT
The Kerala High Court on Wednesday reduced the sentence imposed on former Catholic priest Robin Mathew Vadakkumchery from 20 years to 10 years of rigorous imprisonment coupled with a fine of Rupees one lakh. Justice R. Narayana Pisharadi confirmed the guilt of the accused while partly allowing the appeal.Here are the key points in the judgment issued today: Sentence Imposed:The...
The Kerala High Court on Wednesday reduced the sentence imposed on former Catholic priest Robin Mathew Vadakkumchery from 20 years to 10 years of rigorous imprisonment coupled with a fine of Rupees one lakh.
Justice R. Narayana Pisharadi confirmed the guilt of the accused while partly allowing the appeal.
Here are the key points in the judgment issued today:
The trial court convicted the appellant under Section 376(2)(f) of the IPC and under Section 3(a) r/w Sections 4, 5(f) and 5(j)(ii) read with Section 6 of the POCSO Act.
However, the High Court held as such:
(i) Conviction of the appellant/accused by the trial court for the offence under Section 376(2)(f) of the Indian Penal Code is altered to conviction under Section 376(1). [Section 376(1) prescribes punishment for rape whereas Section 376(2)(f) prescribes punishment for rape committed by a person in a position of trust/ authority towards the woman.]
(ii) Conviction of the appellant/accused by the trial court under Section 3(a) (penetrative sexual assault) read with Section 4 and under Sections 5(f) and 5(j)(ii) read with Section 6 of the POCSO Act is confirmed.
(iii) In supersession of the sentence awarded by the trial court for different offences, the appellant is sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- 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) r/w Section 6 of the POCSO Act.
(iv) In view of the provisions contained in Section 42 of the POCSO Act and Section 71 of IPC, no separate sentence is awarded for the other offences proved to have been committed by the appellant.
(v) The appellant is entitled to get set off under Section 428 Cr.P.C.
What Is The Kottiyoor Rape Case?
The appellant was the Vicar of St. Sebastian Church at Kottiyoor in Kannur District where the survivor used to attend the Holy Mass.
After the Mass, she used to do some computer work in a room attached to the church in which the accused was residing. The prosecution case was that when she was in this room, he used to sexually assault her and warned her not to disclose the matter to anyone.
One day in the month of May 2016, the accused allegedly induced the victim girl to come to his room and he committed rape and penetrative sexual assault on her. As a result, the victim girl became pregnant.
When The Matter Came To Light
Although an attempt was made to hush up the matter, the Child Welfare Committee picked up the incident and informed the police. When the police recorded her statement, the survivor alleged that her own father had committed rape on her.
However, further investigation revealed that the appellant was responsible for sexually assaulting her. The DNA analysis report also revealed that the accused was the biological father of the child born to the teenager.
The appellant was accordingly indicted and a charge sheet was filed against ten accused. Later on, all the other accused were acquitted by the Supreme Court and trial court respectively except the appellant, who was the first accused in the case.
'Law is Dynamic': Proving The Girl's Minority
It was argued by the appellant that Section 94 of the JJ Act, 2015 for determination of the age of the victim would cause prejudice to the accused.
However, the Court dismissed this contention claiming the very purpose of enacting the POCSO Act was to ensure that children of tender age are not abused.
The Court found that provisions contained in the JJ Act 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.
"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."
In fact, when the incident has taken place after the coming into force of the JJ Act, 2015, adopting the provisions of that Act to determine the age of the victim does not cause any prejudice to the accused.
Even going by the provision of JJ Rules, 2007, the prosecution triumphantly proved the age of the survivor and it was established that the incident took place when she was a minor.
Was It Consensual Sex?
The case took an interesting turn when the survivor refused to completely support the prosecution case in her examination. According to her, they engaged in sexual intercourse with her consent and she was not aware that she would become pregnant after sexual intercourse.
In cross-examination, she categorically reiterated that it was with her full consent that the accused had sexual intercourse with her. The appellant also admitted to having sexual intercourse with the teenager.
So the prosecution managed to establish beyond reasonable doubt that the accused made sexual intercourse with her and as a consequence, she became pregnant.
If Consensual, Can The Accused Be Let Off The Hook?
The primary contention raised by the appellant was that the sexual intercourse was with her full and unqualified consent.
It was further argued the prosecution could not legally prove that the survivor was below the age of 18 years when the accused made sexual intercourse with her. On the said grounds, it was argued that the charges levelled against the accused should be dropped.
However, the Court noted that when the incident happened, the girl was below the age of 18 years and the prosecution had successfully proved the same. If that be so, her consent for sexual intercourse would be immaterial.
"Consent of a minor for a sexual relationship is immaterial and inconsequential."
Survivor's Family's Bid To Protect The Appellant
The Court noted that from the very beginning, there has been an attempt on the part of the girl's family to save the accused from the clutches of law.
For instance, the girl had no qualms to state that her own father had raped and impregnated her.
Similarly, the girl's mother informed the hospital that the father of the child born to her daughter was one Benny with the sole intention to save the accused. It has also come out in evidence that the child born to the girl was immediately removed from the hospital and separated from its mother.
Why Was Offence Under Section 376 (2) IPC Removed?
Section 376(2)(f) is attracted when 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 since the appellant was the 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 opined.
While finding the appellant not guilty of the offence under Section 5(p) of the POCSO Act, the trial court has made a categorical finding that the appellant cannot be regarded as a person in a position of trust or authority of the victim.
"In such circumstances, in the given facts of the present case, he cannot be found to be a person who was holding any position of trust or authority towards the victim girl so as to attract the offence punishable under Section 376(2)(f) of the Indian Penal Code. Conviction of the appellant/accused by the trial court under Section 376(2)(f) of the Indian Penal Code has to be altered to conviction under Section 376(1) of the Indian Penal Code", the High Court said.
Sentence Under POCSO Act confirmed
Since the prosecution proved beyond reasonable doubt that the accused committed sexual intercourse with the girl who was then aged below 18 years, it constitutes the offence punishable under Section 3(a) r/w Section 4(1) of the POCSO Act. So the conviction by the trial court under Section 3(a) read with Section 4 of the POCSO Act was confirmed.
Section 5(f) provides the punishment to a person on the management or staff of an educational institution or religious institution who commits penetrative sexual assault on a child in that institution. The offence under Section 5(f) is attracted to the act committed by the appellant. Conviction of the appellant under Section 5(f) is liable to be confirmed.
Since the appellant had made the victim pregnant by his act of penetrative sexual assault the offence under Section 5(j)(ii) also attracted and conviction of him by the trial court for that offence is liable to be confirmed.
How The Court Concluded On 10 Years Imprisonment
The offence under Section 5 r/w Section 6 of the POCSO Act, before amendment by Act 25 of 2019, was punishable with a minimum sentence of rigorous imprisonment for a term of ten years.
The offence under Section 376(1) of the Indian Penal Code, before the amendment by Act 22 of 2018, was punishable with a minimum sentence of imprisonment of either description for a term of seven years.
The maximum sentence of imprisonment for the above offences, now and before the amendment, is imprisonment for life
Section 42 of the POCSO Act provides that, where an act or omission constitutes an offence punishable under the Act and also under Section 376 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under the Act or under the Indian Penal Code as provides for punishment which is greater in degree.
"Considering the facts and circumstances of the case, this Court finds that awarding the appellant/accused a sentence of rigorous imprisonment for a period of ten years and fine of Rs.1,00,000/- for the offence under Section 5(j)(ii) read with Section 6 of the POCSO Act would meet the ends of justice in the case."
The appellant was represented by Senior Advocate B. Raman Pillai and Advocates R. Anil, M. Sunilkumar, K. John Sebastian, Sujesh Menon V.B, T. Anil Kumar, Thomas Abraham Nilackappillil, E. Vijin Karthik, Thomas Sabu Vadakekut, Manju E.R and Mahesh Bhanu S.
Special Government Pleader Ambika Devi, Advocates P. Chandrasekhar, Sandhya Raju, K.K. Mohamed Ravuf and Government Pleaders K. Vidya and Satheesh V.T. represented the respondents.
Case Title: Robin Mathew v. State of Kerala & Ors
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