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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Abin Joseph, S/o Joseph – Appellant
Versus
State Of Kerala – Respondent
Crl.MC No. 2428 of 2024
Decided on : 24-10-2024
(A) Protection of Children from Sexual Offences Act, 2012 – Sections 9 and 10 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 82 – Quashment of order of committal – The learned Magistrate found prima facie evidence of aggravated sexual assault and corporal punishment against the accused based on testimonies of the victim's parents and medical examination – The court held that the allegations warranted trial under the POCSO Act and JJ Act. (Paras 3, 5, 9, 10, 12)
(B) Criminal Procedure Code, 1973 – Section 482 – The court emphasized that the power under Section 482 should be exercised sparingly and only in exceptional cases where the order is manifestly unjust or perverse. (Paras 3, 12)
Facts of the case: The petitioners challenged the order of committal by the Magistrate, asserting that the evidence did not support the charges under the POCSO Act and JJ Act. The victim's parents testified about the assault on their child while he was hospitalized. (Paras 3, 5, 6)
Findings of Court: The court upheld the Magistrate's order, finding sufficient prima facie evidence to proceed with the trial under the POCSO Act and JJ Act. (Paras 12)
Issues: The main issues included whether the evidence presented warranted the charges under the POCSO Act and JJ Act and the appropriateness of the committal order. (Paras 3, 12)
Ratio Decidendi: The court ruled that the evidence of the victim's parents and the medical examination indicated prima facie cases under the relevant sections, justifying the committal order. (Paras 9, 10)
Result: Crl.M.C dismissed.
ORDER :
This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, seeking quashment of Annexure A4 order in C.C.No.657/2018 on the files of Judicial First Class Magistrate Court-II, Kanjirappally.
2. Heard the learned counsel for the petitioners and the learned Public Prosecutor in detail.
3. While challenging Annexure-A4 order, whereby the learned Magistrate, after considering evidence of PW2 and PW3, decided to commit the case on the allegation that during examination of PW1, PW2, PW3 as well as PW10, offences under Sections 9 and 10 of Protection of Children from Sexual Offences Act, 2012 (`POCSO Act' for short) and Section 82 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (`JJ Act' for short) are made out, the learned counsel for the petitioners vehemently would submit that the trial court wrongly interpreted the ingredients to attract offences under Sections 9 and 10 of the POCSO Act as well as Section 82 of the JJ Act as per the FIR, and as per Annexure-A3 final report, none of the offences found during investigation by the police. According to him, none of the overt acts would attract the offences punishable under Sections 323 and 34 of the Indian Penal Code as well as under Sections 9 and 10 of POCSO Act and Section 82 of the JJ Act. Therefore Annexure-A4 order of committal is liable to set aside.
4. Whereas it is submitted by the learned Public Prosecutor that even though offences punishable under Sections 342, 324, 323 read with 34 of the Indian Penal Code (`IPC’ for short) were alleged in the final report, the evidence of PW2 and PW3 supported by the evidence of PW10, prima facie, made out the offences stated in the order of committal and accordingly Annexure-A4 order is perfectly justified, for which no interference is necessary.
5. Tracing the genesis of this case: the father of the victim filed a complaint before the Childline, Alappuzha, and in turn the same was sent to Erumely Police Station for investigation. Accordingly, Crime No.202/2018 of Erumely Police Station was registered and investigated alleging commission of offences punishable under Sections 342, 324, 323 read with 34 of IPC. Thereafter, final report was filed by Erumely Police for the said offences. After start of trial, on analysis of the evidence tendered by PW2 and PW3 (parents of minor) and PW10, the Doctor examined during trial, the learned Magistrate found that the above offences are also made out and as such this matter requires to be tried by the Special Court under the POCSO Act.
6. PW2 examined in this case is none other than the mother of the child. According to her, her son usually had fits and he was admitted at Assissi Hospital, Erumely. PW3, the father was the bystander therein. Thereafter PW2 also became his bystander. Her evidence further is that during halt of the child at Assissi Hospital, 4 persons assaulted him. They are 3 staff nurses and one de-addiction patient and PW2, mother, had given statement in this regard to Erumely Police Station and same is Ext.P1. According to her, the above said 4 persons assaulted her child and at that time his legs and hands were tied and there were signs of the same. Further there was inflammation over the body and she had noticed the same. Later when she asked her son about the occurrence in between 22.01.2018 and 20.02.2018, he stated that he was beaten by the accused persons and orange juice poured into his eyes. Further a rubber like structure was put on his penis when he refused to take the food. He named and identified the staff nurses as Jobin, Vipin and Ganesh. When the child refused to take food he was discharged on 20.02.2020. PW3 examined is the father of the child. According to PW3, when his child was admitted in Assissi hospital, he was manhandled, beaten by putting a rubber like structure on his penis and orange juice poured on his eyes and face, and his leg was twisted and thereafter he was discharged.
7. Going by the orde
AI
The court upheld the committal order based on prima facie evidence of aggravated sexual assault and corporal punishment under the POCSO Act and JJ Act.
The conviction under the POCSO Act was upheld amidst witness discrepancies, highlighting the importance of victim's consistent testimony; sentence was modified to five years for proportionality based....
The court clarified the applicability of specific sections of IPC and POCSO Act based on the evidence of the case, distinguishing between the roles of the accused.
The court held that insufficient evidence for penetrative assault warrants acquittal under specific POCSO sections, yet convicted the appellant for lesser sexual assault under Section 9(n).
The court confirmed convictions under the POCSO Act and SC/ST (POA) Act for aggravated sexual assault on a minor, while acquitting the accused of IPC Section 504 due to insufficient evidence of provo....
The court ruled that insufficient evidence of penetration under Section 6 of the POCSO Act led to a conviction under Section 10 for aggravated sexual assault.
The necessity of proving penetration or manipulation causing penetration for charges under the POCSO Act was emphasized, leading to a conviction for attempted offences.
Conviction in sexual offences can be established on the reliable testimony of the victim's mother, supporting the conviction under POCSO and IPC despite some evidence being contested.
Point of law: Section 42(A) of the POCSO Act, Section 31 of Cr.P.C., need not be strictly followed while awarding the punishment of imprisonment for offence under the POCSO Act.
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