KERALA HIGH COURT
A. Hariprasad, M.R. Anitha, JJ.
State of Kerala Rep. by the State Public Prosecutor, High Court of Kerala – Appellant
Versus
Madhu @ Kutti Madhu S/o
Manikandan – Respondent
Crl. Appeal Nos. 1357, 1359, 1360, 1363 of 2019, CRA (V) Nos. 31, 32, 33, 34 of 2019
Decided on 06-01-2021

IMPORTANT POINTS
(1) Level of integrity and capability expected of police officers investigating into offences against women and children, especially those under POCSO Act, are very high.
(2) Judge does not preside over a criminal trial merely to see that no innocent man is punished, but a Judge also presides to see that a guilty man does not escape.
(3) Abhorrent child abuses and inexcusable indifference to crime are some of gravest social evils prevalent in present society.

Headnote:

(A) Child Abuse—Manifestations—Abhorrent child abuses and inexcusable indifference to crime are some of gravest social evils prevalent in present society—A child can be abused in many ways—Mental, physical and sexual abuses are some of them—Multi-dimensional complexities of human life, misuse of social media platforms and changed socio-economic conditions expose children to new and different forms of abuses—It includes causing mental and physical injuries, neglecting, blaming, forced sexual serfdom, incest exploitation—Child abuses take place in their homes, schools, orphanages and residential care facilities—Even on streets, in work places and in prisons too such violations occur—Violence in any form will cause a deep impact and leave an indelible scar in mind of child—Child abuse results in a real or potential harm to child’s health, personality development and dignity. (Para 1)

(B) Protection of Children from Sexual Offences Act, 2012—Section 5(n) read with Section 6—Indian Penal Code, 1860—Sections 376(2)(i), 377 and 305—Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989—Sections 3(1)(w)(i) and 3(2)(va)—Criminal Procedure Code, 1973—Section 386—Unnatural sexual offence with a minor girl—Commission of suicide by victim girl—Material witnesses who deviated from their previous statements were not effectively cross-examined—Although in some cases Prosecutor had put some vague questions under Section 154 of Evidence Act with permission of court, Prosecutor miserably failed to confront witnesses with their previous statements—Perfunctory initial investigation and cursory, desultory and unskilled prosecution coupled with lack of involvement by trial Judge resulted in miscarriage of justice and consequential unmerited acquittals in all these cases—This Court is bound to exercise its powers under Section 386 of Cr.P.C. to set aside order of acquittal in each case and direct re-trial in all cases—This Court, in such cases, is duty bound to exercise its powers under Section 386 of Cr.P.C. as well as constitutional powers to see that cases are decided on merit in a legalistic manner—Judgments passed by 1st Additional Sessions Judge (Special Judge), set aside and cases remanded to Court for re-trial and disposal. (Paras 79,94, 99 and 105)

(C) Indian Evidence Act, 1872—Section 165—Questioning by Court—Under Section 165 of Evidence Act court has a right to ask witness any relevant or even irrelevant question and parties or their counsel cannot raise any objection to any such question. (Para 80)

(D) Criminal Procedure Code, 1973—Section 386(a)—Power of Appellate Court—Appellate court in an appeal from an order of acquittal may reverse such order or direct further inquiry be made; order accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law—Criminal courts are not functioning only to enter convictions in all trials and to take away life and liberty of individuals who could have been, at times, wrongly implicated in crimes—At the same time, it is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished, but a Judge also presides to see that a guilty man does not escape. (Paras 84 and 85)

(E) Criminal Procedure Code, 1973—Section 173—Crime investigation— Every citizen in this country has a right to have not only a fair trial, but also a fair investigation which is an essential concomitant of a fair trial—Police officers conducting investigation into heinous crimes should be scrupulously honest and committed to their duties and responsibilities—Level of integrity and capability expected of police officers investigating into offences against women and children, especially those under POCSO Act, are very high—They should get proper legal training to understand nuances of law—Besides, they should be properly instructed to gather scientific evidence in such cases—More importantly, they should be sensitive to emotions and sentiments of victims, their family and society at large while investigating such grave crimes. (Para 103)

Result: Appeals allowed.