Kerala High Court: Expressing, “When a man abandons his wife and children, roving vultures wait to prey on not only the abandoned woman, but also the helpless children” Division Bench of K. Vinod Chandran and Ziyad Rahman A.A., JJ., noted a case wherein a priest/oracle of a temple took the abandoned woman and three children under his wing and repeatedly molested the elder girl child in the presence of her siblings.
Noting the above stated horrendous act of the priest, Bench expressed,
“We wonder which God would accept the obeisance and offerings of such. Priest or make him a medium?”
Counsel for the appellant, K.M. Frioz:
There was a misjoinder of charges. The Protection of Children from Sexual Offences Act, 2012 was brought into effect from 14-11-2012 and the incident on which the first charge was levelled was prior to the POCSO Act and required a committal proceeding under the CrPC.
Further, it was also contended that clubbing of the charges resulted in grave prejudice to the accused, since the POCSO Act by Sections 29 and 30 raised a presumption against the accused.
High Court stated that the ground of absence of committal proceedings against the alleged offence could not be sustained.
Further, the Court referred to the Supreme Court decision of Moly v. State of Kerala, (2004) 4 SCC 584, wherein the enactment under which the offence was alleged, did not have a provision similar to Section 33 of the POCSO Act.
POCSO Act enables such other offences to be tried without committal proceedings if it is to be tried in the same trial. The grounds of prejudice urged fails also for the reason that it is merely imaginary. We reject it at the outset on the above reasoning and also on the appellant having merely ‘cried foul’ without the particular prejudice caused or the specific failure of justice, having been stated or substantiated.
Evidence on Merits – Dealt
ChildLine personnel was informed that a woman and four children were wandering and PW 15 along with two Woman Civil Police Officers brought them to the Vanitha Cell, on enquiry it was revealed that the woman showed signs of acute mental illness and displayed violent tendencies.
Elder Child had revealed that the accused who was living along with the woman, had sexually molested her for the last one year.
Since the woman had shown signs of mental illness, on the orders of CJM, she was taken to the Mental Health Centre along with the youngest child. Other children were admitted to the Government Juvenile Home.
Whether the age of the victim was proved?
The offence was committed long before the JJ Act, 2015 came into force.
Court emphasized that, since the POCSO Act did not contain a provision to determine the age of a victim, the proof has necessarily to be in accordance with the rigour of the requirement as insisted by the earlier JJ Act and Rules.
Bench added that
“…there was no prejudice caused to the accused for reason of clubbing an offence under Section 376(2) with an offence under the POCSO Act, going by the specific provision in Section 28(2) of the POCSO Act. In fact, the offence of rape committed on a minor aged below 12 years would attract Section 376 of the IPC and the provisions of the POCSO Act.”
“…when the offences, which arise from the very same act, are tried together and the age of the victim is not proved, it is not as if the offence under the IPC charged against the accused would fall to the ground since no committal proceedings have been carried out under the Cr.P.C”
When taking cognizance of a charge under the POCSO Act, the designated Special Court is empowered to try any offence, charged at the same trial. Otherwise, every trial under the POCSO Act will have to wait till the committal proceeding is over and that would defeat the very purpose of the enactment which envisages speedy disposal of the cases.
Court further observed that,
It cannot be the position that once the age is not proved, the offence under Section 376 would fail for the reason of no committal proceedings having been taken under the CrPC.
Analyzing further, the High Court expressed that the charge, though with specified dates was explicit and of continued sexual assault of the penetrative kind on the victim by the accused, who was in the status of her guardian.
Mere irregularity in charge does not prejudice the accused so long as he was aware of what was expected to be defended.
Bench also further referred to a quote from the Division Bench of the Kerala High Court, Surendran v. State, 2021 (3) KLT 205.
No specific statement by PW 1 as to a penetrative sexual assault having been committed on her.
High Court rejected the above contention since the victim had spoken of the repeated acts committed on her in graphic detail. She even spoke of herself being subjected to such acts repeatedly on a day and continuously on several days.
We do not think that at every point, when repeated penetrative sexual assault is alleged, there should be a graphic description by the victim, in Court, of the details of such assault.
Additionally, the High Court expressed that,
In addition to the trauma of being subjected to a penetrative assault, that too by a person far older in age and having the status of a guardian, the Courts cannot but insist on the trauma being re-visited when examined in Court for the purpose of a successful prosecution. However, that cannot lead to an insistence that when continuous and repeated sexual assault forms the gravamen of the accusation; the witness should be called upon to state every detail of each of such traumatic instances of abject depravity.
Victim a credible witness
Court noted that the essentials of repeated sexual molestation and the manner in which it was carried out had been consistently stated by the victim at the initial stage to the police, who rescued her from the streets and then to the Doctor and the Magistrate; which also had been deposed before the Court, hence there was no question of adverse inference being drawn.
Mental state of the mother, a shame on society, is quite understandable from the stress of having been abandoned, with three children and no means of food or shelter; for which alone the children were subjected to physical, mental and sexual torture. No mother can remain sane in the said circumstances.
As per the medical examination, it was revealed that the prosecutrix had been habituated to sexual act, definitely it corroborated the testimony given by her.
In view of the above stated facts and evidence produced on record, High Court found that the victim was subjected to repeated rape by the accused that too of the penetrative kind.
Though the age of the victim was not proved, she was a school going child, temporarily kept away from her studies.
On the question of charge, under POCSO Act, since the age of the victim was not proved, the accused had to be acquitted of the charges under the POCSO Act. Hence there could not be a conviction under Section 376(2) IPC.
Though the offence of rape was proved and therefore the accused was liable to be convicted under Section 376(1).
While partly allowing the appeal, the accused was given maximum sentence of life imprisonment. [Madhu v. State of Kerala, 2021 SCC OnLine Ker 3561, decided on 23-09-2021]
Advocates before the Court:
For the appellant/accused:
Sri K.M. Firoz
Smt. M. Shajna
Sr iP.C. Muhammed Noushiq
For the Respondent/Complainant/State:
By Public Prosecutor Smt. Sheeba Thomas