Case Note & Summary
The appellant, Mohd. Zakir Habib Khan, was convicted by the Special Court under the POCSO Act for sexually abusing his own daughter from the time she was six years old until she was fourteen. The victim eventually disclosed the abuse to a neighbour, Ruksar Ovez Batatewala (PW-3), on 13 February 2013, leading to an FIR on 14 February 2013. The trial court convicted the appellant under Sections 354 and 376d of the IPC and Section 6 of the POCSO Act, sentencing him to life imprisonment. The appellant appealed against this conviction. The High Court examined the evidence, particularly the testimony of the victim, which was found to be consistent and credible. The court noted that the victim's testimony was corroborated by PW-3 and other witnesses. The court held that while the conviction under Section 376d IPC (gang rape) was not sustainable as there was no evidence of involvement of any other person, the act of the father repeatedly raping his minor daughter clearly constituted aggravated penetrative sexual assault under Section 6 of the POCSO Act. The court also addressed the delay in filing the FIR, finding it satisfactorily explained due to the familial relationship and fear. The court upheld the conviction under Section 6 of the POCSO Act and the sentence of life imprisonment, while setting aside the conviction under Section 376d IPC. The appeal was partly allowed.
Headnote
A) Criminal Law - Sexual Offences - Gang Rape - Section 376d IPC - Conviction under Section 376d IPC requires proof that the rape was committed by more than one person acting in furtherance of common intention - In the present case, the victim's testimony did not establish involvement of any other person - Hence, conviction under Section 376d IPC is not sustainable (Paras 12-14). B) Criminal Law - POCSO Act - Aggravated Penetrative Sexual Assault - Section 6 POCSO Act - Even if gang rape under Section 376d IPC fails, the act of the father repeatedly raping his minor daughter constitutes aggravated penetrative sexual assault under Section 6 POCSO Act - Conviction under Section 6 POCSO Act is sustainable (Paras 15-16). C) Evidence Law - Testimony of Victim - Credibility - In sexual offences, the sole testimony of the victim is sufficient to base conviction if it is trustworthy and inspires confidence - The victim's testimony was consistent, corroborated by other witnesses, and the defence failed to shake her credibility - Held that conviction can be based on the victim's testimony alone (Paras 17-20). D) Criminal Procedure - Delay in FIR - Explanation - Delay in filing FIR is not fatal if properly explained - In cases of sexual abuse by a family member, delay is natural due to fear, shame, and family pressure - The delay of about 8 years from the first incident was satisfactorily explained (Paras 21-22). E) Criminal Law - Sentencing - Life Imprisonment - Section 6 POCSO Act - The appellant, being the father, committed repeated sexual assault on his minor daughter from age 6 to 14 - Such breach of trust warrants maximum sentence - Life imprisonment under Section 6 POCSO Act is appropriate (Paras 23-25).
Issue of Consideration
Whether the conviction of the appellant under Sections 354 and 376d of IPC and Section 6 of POCSO Act is sustainable on the basis of the evidence on record.
Final Decision
Appeal partly allowed. Conviction under Section 376d IPC set aside. Conviction under Section 354 IPC and Section 6 POCSO Act upheld. Sentence of life imprisonment under Section 6 POCSO Act maintained.
Law Points
- Conviction under Section 376d IPC requires proof of gang rape
- but even if not strictly proved
- conviction under Section 6 POCSO Act for aggravated penetrative sexual assault is sustainable
- Testimony of victim alone sufficient for conviction if credible
- Delay in FIR explained by family relationship and fear
- Medical evidence not mandatory in sexual offences
- Sentence of life imprisonment appropriate for repeated sexual assault by father
