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IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. NARAYANA PISHARADI, J.
Syam Sivan @ Anandhu, S/o.Sivan - Appellant
Versus
State of Kerala - Respondent
Crl.A No. 986 of 2019
Decided on : 17-11-2021
Juvenility - Criminal Law - Indian Penal Code - Protection of Children from Sexual Offences Act - [Juvenility] - [Criminal Law] - [Indian Penal Code Sections 366A, 376] - [Protection of Children from Sexual Offences Act, 2012 (POCSO Act) Section 3, Section 4] - [Juvenility of the accused was raised as a plea. The court conducted an inquiry to determine the age of the accused as per Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. The court found that the accused was a juvenile at the time of the commission of the offences. The court referred to the legal provisions and the Supreme Court's interpretation in Ashwani Kumar Saxena v. State of M.P. The court emphasized the importance of following the procedure laid down in the Juvenile Justice Act and Rules for determining juvenility. The court accepted the evidence presented by the accused to prove his juvenility and concluded that he was a juvenile at the time of the offences. Consequently, the court set aside the conviction under the POCSO Act and ordered the release of the accused from custody.]
Fact of the Case:
The victim, a 17-year-old girl, was induced by the accused to go with him to Mysore on the promise of marriage. The accused committed forcible sexual intercourse with the victim girl at a lodge in Mysore. The victim's father filed a complaint, leading to the accused's conviction by the trial court for offences under Sections 366A and 376 of the Indian Penal Code and under Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The accused filed an appeal challenging the conviction and sentence imposed by the trial court.
Finding of the Court:
The court found that the accused was a juvenile at the time of the commission of the offences. The court set aside the conviction under the POCSO Act and ordered the release of the accused from custody. The court also altered the conviction under Section 366A of the I.P.C to conviction under Section 366 of the I.P.C. The court affirmed the conviction under Section 376 of the I.P.C and set aside the sentences of imprisonment and fine imposed on the accused by the trial court.
Issues: The main issue was the determination of the accused's juvenility at the time of the offences. The court also considered the evidence presented by the prosecution and the accused, the reliability of the victim's testimony, and the proof of the victim's age.
Ratio Decidendi: The court emphasized the importance of following the procedure laid down in the Juvenile Justice Act and Rules for determining juvenility. The court accepted the evidence presented by the accused to prove his juvenility and concluded that he was a juvenile at the time of the offences. The court also highlighted the distinction between consent and submission in cases of sexual offences and the necessity for the accused to prove consent. The court referred to legal provisions and judicial interpretations to support its findings.
Final Decision: The court set aside the conviction under the POCSO Act and ordered the release of the accused from custody. The court also altered the conviction under Section 366A of the I.P.C to conviction under Section 366 of the I.P.C. The court affirmed the conviction under Section 376 of the I.P.C and set aside the sentences of imprisonment and fine imposed on the accused by the trial court.
JUDGMENT :
The appellant is the sole accused in the case S.C.No.253/2014 on the file of the Additional Sessions Court-I, Pathanamthitta.
2. The appellant/accused challenges the judgment of the trial court in the above case, convicting and sentencing him for the offences punishable under Sections 366A and 376 of the Indian Penal Code and under Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act').
3. The prosecution case, in short, is as follows: The victim girl, who was aged 17 years, was in love with the accused. He was a person working as cleaner in a bus in which she used to travel frequently. On 20.09.2013, the accused induced her to go with him to Mysore on the promise that he would marry her. He took her to Mysore. They resided together in Bharat Lodge at the place Mandiwala in Mysore on 21.09.2013 and 27.09.2013. During the interval, they had gone to Goa and returned to Mysore. At the room in the Lodge, the accused committed forcible sexual intercourse with the victim girl. On the morning of 28.09.2013, they came back and reached their native places.
4. On 21.09.2013, at 11.00 hours, the father of the victim girl went to the police station and gave Ext.P2 statement regarding the missing of his daughter. On the basis of that statement, Ext.P7 F.I.R was registered as Crime No.1685/2013 of the Adoor Police Station under Section 57 of the Kerala Police Act, for 'missing of woman'.
5. On 28.09.2013, when the victim girl came back, her father produced her in the police station. During the investigation of the case it was revealed that the victim girl was sexually assaulted by the accused. PW7 Sub Inspector, who conducted the initial investigation of the case, filed a report in the court for deleting Section 57 of the Kerala Police Act from the F.I.R and for incorporating the offences under Sections 366A and 376 of the I.P.C and Section 7 read with Section 8 of the POCSO Act. PW12 Circle Inspector conducted the further investigation of the case. After completing the investigation, he filed charge-sheet against the accused for the offences punishable under Sections 366A and 376 of the I.P.C and Section 3(a) read with Section 4 of the POCSO Act.
6. The trial court framed charge against the accused for the offences punishable under Sections 366A and 376 of the I.P.C and also under Section 3 read with Section 4 of the POCSO Act. The accused pleaded not guilty and he claimed to be tried.
7. The prosecution examined the witnesses PW1 to PW12 and marked Exts.P1 to P15 documents and MO1 material object. No evidence was adduced by the accused.
8. The trial court found the accused guilty of the offences punishable under Sections 366A and 376 of the I.P.C and under Section 3 read with Section 4 of the POCSO Act and convicted him thereunder. The trial court sentenced the accused to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/-and in default of payment of fine, to undergo rigorous imprisonment for a period of three months for the offence punishable under Section 376 of the I.P.C. The trial court sentenced the accused to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.25,000/-and in default of payment of fine, to undergo rigorous imprisonment for a period of one month for the offence punishable under Section 366A of the I.P.C. The trial court directed that the substantive sentences of imprisonment imposed on the accused shall run concurrently. No separate sentence was imposed on the accused by the trial court for the offence under Section 3 read with Section 4 of the POCSO Act.
9. This appeal was filed by the accused from the jail, challenging the conviction entered against and the sentence imposed on him by the trial court as above.
10. Heard learned counsel for the appellant (State Brief) and also the learned Public Prosecutor and perused the records. Plea of Juvenility, Inquiry and Finding
11. Learned couns
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