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A bench of Justice Narayana Pisharadi of the Kerala High Court has held that the evidence that a victim of rape is of ‘easy virtue’ or ‘habituated to sexual intercourse’ is not a ground to absolve the accused from the charge of rape, and said that in cases of rape it is the accused who is on trial, not not victim.

Facts

The accused in the case is the father of the victim, who was 16 years of age at the time of commission of offence. The father of the victim girl, repeatedly committed saexual assault and rape on her, on many days during the period from June, 2012 to January, 2013. The girl got pregnant. She delivered a male child. At the trial stage, the trial court found the father guilty, against which order the present appeal was filed.

High Court's observations

“The accused was a person who was duty bound to provide the victim girl protection and support. But, he perpetrated sexual assault and rape on her. One cannot even imagine the trauma the victim would have suffered. The indelible imprint which the incestuous act has left in her mind cannot be ignored. She may feel the mental agony and pain for years to come. It is a case in which on account of rape committed on her by her own father, she has delivered a male child. The sufferings endured by the victim girl would be beyond imagination.”

To that effect, the High Court noted that the accused is not entitled to any leniency in the matter of punishment. The Court passed an elaborate order, taking each aspect separately and as follows:

• Delay in lodging FIR:

The Court observed that the circumstances of the case themselves justify the delay. No girl would have wanted the world to know that she was a person subjected to sexual assault by her own father. Delay in lodging the F.I.R cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. 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.

Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is on account of the attitude of the society which casts doubt and shame upon the victim rather than comfort and sympathy.

• Credibility of the victim

On the accusation that this is a false case against the father by the victim, the Court observed that no girl would have preferred to put her honour and dignity at stake and make a false complaint against her own father.

Further, on the accusation that the victim has been involved in sexual relationship with other persons, the Court observed that it does not in any way affect the credibility of the testimony of victim. The Court stated:

“Even in a case where it is shown that the victim is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. Even assuming that the victim is previously accustomed to sexual intercourse, that is not a decisive question. On the contrary, the question which is required to be adjudicated is, did the accused commit rape on the victim on the occasion complained of."

• Consent of the Victim

On the accusation that the victim had consented to the having sexual intercourse with her father, the Court observed that it is not for the victim to show that there was no consent. The question of consent is really a matter of defence by the accused and it is for him to place materials to show that there was consent. The Cort further observed that the defense of consent is too shallow. That:

One cannot even imagine that the victim girl consented to have sexual intercourse with her father. There is gulf of difference between consent and submission. Every consent involves a submission but the converse does not follow. 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.”

Thus, the Court found the father guilty of raping the daughter. In his order, Justice Pisharadi noted:

There can never be more graver and heinous crime than the father committing rape on his own daughter. The protector then becomes the predator. The father is the fortress and refuge of his daughter. Charged of raping his own daughter under his refuge and fortress is worst than the gamekeeper becoming a poacher and treasury guard becoming a robber.

Cause Title: Unnikrishnan vs State of Kerala