A close relative who had abused an eight-year-old girl inside a house of mourning six years ago was sentenced to what in legal terms is called a "deterrent punishment" of 25 years of rigorous imprisonment and slapped a fine of Rs 30,000 by the Fast Track Special Court (POCSO) Thiruvananthapuram on May 13. If the convict opts not to pay the fine, he must serve another eight years in prison.

The accused, a lottery vendor now over 50 years, was charged with penetrative sexual assault of the 8-year-old.  

The alleged rape is said to have taken place after lunch in the house of the victim's grandmother on September 30, 2019, a day after the funeral of the girl's uncle, her father's younger brother. The girl was on the first floor hall of her grandmother's house, watching a mobile phone with her brother and sister. The accused came up to the first floor and, according to the victim, asked her siblings to leave and then committed the crime.

After the man left, the child washed herself. She wanted to tell her grandmother, but held herself in check out of fear. However, later that day she spoke of the assault in an oblique manner. She said she was hugged by the man. The grandmother confronted the man and asked him what he did to the child. He said he only petted her. At this point, according to the grandmother's statement, the child said the man's actions were painful and uncomfortable. Furious, the woman asked the accused to leave the house.

She revealed what happened to her on the day after the funeral only two years later in 2021, when the child was under the care of the Child Welfare Committee (CWC) and was subjected to counselling.  She and her siblings were shifted to a home run by the CWC following the breakdown of their parents' marriage.

The defence had three major arguments. One, the unreliability of the survivor. The defence pointed out that the survivor had originally said that the incident had happened not on September 30, 2019, but on December 25 that year, the day after her grandmother's mother had died. However, the court maintained that it was normal for the child to confuse the dates as the two deaths in the family had taken place in quick succession in 2019; the uncle's death on September 19 and the great-grandmother's on December 25. Moreover, the confusion would be all the more pronounced because she opened up only two years after the abuse.

Two, the immobility of the accused. It was argued that the accused was bedridden on the date of the abuse as a result of certain complications that developed after an accident he suffered in 2015. However, the court trusted the statements of the survivor and her grandmother that the man was in the house on September 29 and 30.

The grandmother, however, testified that the man had difficulty walking, had a limp and that he could not stand straight. The court, however, did not find this sufficient reason to rule out rape. The defence also could not produce any medical documents to prove the man's disability.

Three, impotency. His wife testified that her husband was declared by doctors as unfit to function as a husband after she had a second child. But no medical records were submitted. And a potency test done on the man by the court revealed no sexual dysfunction either.

Four, the intact hymen. As proof of innocence of the accused, the defence pointed out that the hymen was not ruptured and there were no semen traces on the child's clothes. The prosecution's expert witness who had examined the victim (Dr Rekha R M, junior consultant in Obstetrics and Gynecology at Government Women and Children hospital, Thycaud) testified that not in all cases the hymen would be ruptured and even if it does, it could heal quickly in the case of children. The child was examined two years after the abuse. The court also observed that the Supreme Court itself had said that even a surface level penetration that would not breach the hymen was enough to constitute rape.

As for the lack of semen traces on clothes, the court remarked that the child had never claimed that her clothes were sullied. She had only said that she felt something sticky on her skin. 

The defence argument was that it was a case of vendetta. It was said that the victim's father had owed the accused Rs 40,000. It was implied that the case came up after the accused started asking for his money. The court did not attach any relevance to the vengeance theory as the wife and sister of the accused, the two major defence witnesses, admitted that they had no direct knowledge of the debt owed to him by the survivor's father.

 He .was convicted under Section 6 (Punishment for aggravated penetrative sexual assault) read with Section 5(m) (which declares penetrative sexual assault on a child below 12 years as one of the 21 types of aggravated penetrative sexual assault behaviours) and Section 5(n) (which terms a relative's penetrative assault on a child below 12 as aggravated penetrative sexual assault) of the POCSO (Protection of Children from Sexual offences) Act. The multiple conviction was also under Section 10 (Punishment for aggravated sexual assault) read with Section 9(m) (which defines sexual assault on a child below 12 years as one of the 22 types of aggravated sexual assault behaviours) and Section 9(n) (which states that a relative's assault on a child is aggravated sexual assault) of the POCSO Act.

The sentences under all these sections would add up to 64 years. But the court said that the sentences would run concurrently, meaning it would not be more than 25 years.

Special judge Rekha R argued that for heinous crimes like rape of a child, deterrence as purpose of punishment becomes paramount. "The accused who dared to commit such loathsome act in total disregard of the tender age of the victim and his relationship with her does not deserve any mercy," the Judge said, and added: "Considering the seriousness and repulsive nature of the act committed by accused, adequate punishment should be handed down to accused to prevent recurrence of similar offences and to give a strong message to the society and potential offenders."