Cannot throw out sexual assault case merely on ground of delay in lodging FIR: Kerala High Court

The Kerala High Court recently held that cases of sexual assault cannot be dismissed by courts merely on the ground that there was delay in lodging the First Information Report (FIR) [xxx v State of Kerala]. .Justice Kauser Edappagath held delay in reporting sexual offences should not be viewed through the same lens as delay in reporting other crimes, especially in tradition bound societies like ours"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 judgment stated.Such delays become fatal only if there are other doubts regarding the veracity of the prosecution case, the Court said..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.Kerala High Court.The Court was considering an appeal moved by a man accused of sexually assaulting his minor daughter on several occasions, thereby committing offences punishable under the provisions of the Protection of Children from Sexual Offences Act (POCSO Act).The Additional District and Sessions Judge, Kollam had convicted him under Section 9(n) of POCSO Act and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of ₹25,000, or in default to suffer simple imprisonment for three months under Section 10 of POCSO Act. He moved the High Court against the same. The appellant contended that the conviction was based on the uncorroborated testimony of the child witness which suffered from contradictions and omissions. It was also argued that the conviction must be set aside on the ground of the inordinate delay in reporting the matter and lodging the FIR, the benefit of which should go to the accused..The Court went through the testimonies of the minor survivor as well as her mother, and noted that even under cross-examination during the trial, nothing tangible was extracted that could create any shadow of doubt on their credibility.On the victim's testimony, the Court noted that it is a settled position that the evidence of a survivor of sexual offence is entitled to great weight, absence of corroboration notwithstanding. Referring to the judgment of the Supreme Court in State of Punjab v Gurmit Singh, the Court said, "the courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable". On the delay in reporting the matter to the police and lodging the FIR, the Court noted that apart from an inability to recall an assault by the accused several years ago when she was 7 years old, the survivor had also stated that she was very ashamed to complain about such acts against her father before others. As such, there is nothing on record to doubt about the genesis or genuineness of the prosecution case on account of the alleged delay, the Court said. Therefore, the Court saw no reason to interfere with the order of the Sessions Court and upheld the conviction and sentence imposed on the appellant..Advocate Sujithkumar TU appeared for the appellant while Public Prosecutor Bindu OV appeared for the respondent..[Read Judgment]