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Synopsis

The Kerala High Court has reduced the sentence of a rape convict, Iliyas, from seven years to one year, adopting a lenient approach after noting that the convict, who was 19 at the time of the incident, and the minor survivor were in a consensual relationship.

The incident occurred in 2011 when the survivor, aged 13, voluntarily accompanied the convict to Ooty, where the alleged offence took place. The prosecution had alleged that the accused had instigated the survivor, a student of class seven, to accompany him to Ooty, where he subsequently raped her. The accused was arrested after the girl’s family traced her to Ooty and reported her missing. The Sessions Court, in 2016, convicted him under Section 376 IPC, sentencing him to seven years imprisonment. This decision was challenged by the accused before the High Court.

The court, presided over by Justice C.S. Sudha, clarified that the court in no way justifies the act committed by the accused, however, considering the circumstances of the case, it stated that “In criminal jurisprudence the concept of punishment has evolved from a retributive approach to a reformative approach. The facts and circumstances of the case call for a lenient approach to be taken against A1 (accused), who was just 19 years old at the time of the incident.”

During the trial, it was also revealed that the survivor had admitted to voluntarily accompanying the accused to Ooty with the intention of getting married, despite her father’s opposition to the relationship. The trial court had acquitted the accused under Section 366A IPC, finding no evidence of compulsion or deceit. The High Court, therefore, noted, “This is not a case where A1, by deceit or fraud, enticed PW2 out of her lawful guardianship.”

However, the court reiterated that the survivor’s age rendered her consent invalid, citing that she was a minor at the time of the incident. The court observed that the survivor, who had turned 17 by the time of her examination before the trial court, had sent letters to the accused expressing her continued desire to be with him. “There is no case for PW2 that she was forced or seduced into having illicit intercourse with another person. Her testimony shows that she had voluntarily joined A1,” the court remarked.

The court invoked the proviso to Section 376(1) of the Indian Penal Code (IPC), which, prior to its amendment in 2013, allowed courts to impose a lesser sentence than the prescribed minimum of seven years if there were “adequate and special reasons,” highlighting that “The legislature itself contemplated such a situation and hence the reason why such a proviso was brought into the statute despite a minimum sentence of seven years being prescribed.”

Referencing the Supreme Court’s decision in Sukhwinder Singh v. State of Punjab (2000), where it was established that when the survivor herself is a consenting party, proviso to Section 376 of IPC cannot be overlooked. The High Court concluded that “facts and circumstances of the case made out an adequate and special reason to invoke the proviso,” particularly given the age of the accused and his expression of remorse.

As a result, the court modified the sentence imposed by the trial court and reduced it to a period of simple imprisonment for one year.

 

Cause Title: Illiyas v State of Kerala [CRL.A NO. 110 OF 2016]

Counsel for the Petitioner: Advocates Samsudin Panolan, Jasneed Jamal, Lira A. B., Devika E. D., Abin Rashid

Counsel for the Respondent: Public Prosecutor Sheeba Thomas