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IN THE HIGH COURT OF MADRAS
V. PARTHIBAN, J.
Sabari - Appellant
Versus
Inspector of Police, Belukurichi Police Station and Ors - Respondent
Crl. A. No. 490 of 2018
Decided On : 26-04-2019
POCSO Act - Section 2 – Public service Commission - provision of medical treatment through Hospitals - Rigorous Imprisonment - appellant/accused was in relationship with a minor girl and had kidnapped her from lawful custody of her grandparents and thereafter committed sexual assault on her on many occasions victim girl was staying with her grandparents at that relevant point of time - On date of occurrence she had gone out to purchase Shampoo at but she did not return home appellant/accused induced her and took her to Erode tied on her neck in and thereafter took her to Bangalore and stayed with the victim girl and committed aggravated penetrative assault on her – Grandfather of victim girl as complainant has stated in his complaint victim girl came to his house for getting Transfer Certificate and on same day at went to buy shampoo, but she did not return home and on enquiry, he came to know that the appellant/accused kidnapped her by inducing her - He would also state that victim girl at that time was is the victim girl – Held, In such circumstances, it is socially imperative that the collective conscience of society must take upon itself the task of soul searching than leaving the ominous issue to be tackled only by the law enforcing authority - Society need not aim to become an Utopian State, but it can prevent itself from perilously inching towards dystopian era - In above circumstances initiatives of the authorities as collated and quoted in decision above are assuaging and admirable and need to be appreciated - However, despite such constant efforts by various departments in initiating awareness in multitude in terms of POCSO Act there appears to be let up in the sexual crimes particularly against children - Therefore, the need of the hour is to identify the cause first before dealing with effect of such cause - This Court, in consideration of various factors and the circumstances, is of the view that a high level committee may be appointed by the State Government concerned comprising persons of eminence from various walks of life, like Social auditor, psychologists, Social Scientist etc., to investigate and study the malady afflicting the Society. Hope the appropriate authorities, who are equally concerned, may take this decision as a cue to initiate action to find a social solution in curbing the despicable menace of pathological behavior of the perverted kind unleashed on the society, which society once boasted off great connectivity - Committee may consider as far as possible each case of violence against women and children as a study and come up with social answers. The Committee may study such crimes from various dimensions including the cultural psyche of the offenders and may come up with suggestion periodically to arrest further growth of such crimes in future - Society which has been rooted in one of the oldest civilizations of the world is facing its gravest challenge of steep cultural fall and degradation of an inconceivable kind, where children and women come under constant sexual attack day in and day out pushing the society to the brink of its civilized existence - In a Society where sexual crimes against children and women is order of day something horrendously has gone wrong with evolution answer must be found beyond the criminal laws and its implementation – Order accordingly
Key Points: - The victim girl turned hostile and did not support the prosecution, with key witnesses also turning hostile, raising questions about the admissibility and sufficiency of evidence (!) (!) (!) . - The prosecution failed to produce material objects or credible direct evidence, relying instead on presumption and hearsay, which the court found insufficient (!) (!) (!) . - The court held that mere likelihood or opinion from medical witnesses cannot form the basis for conviction, and that consent becomes immaterial only when sexual assault is clearly established (!) (!) .
JUDGMENT :
V. PARTHIBAN, J.
1. This criminal appeal is directed against the order of the Court of Sessions, Fast Track Court (Mahila Judge), Namakkal, in Special Calendar Case No. 55 of 2015, dated 20.06.2018, convicting the appellant/A1 under Section 363 of IPC and Section 5(1) read with Section 6 of POCSO Act, 2012 and sentencing him to undergo five years Rigorous Imprisonment, along with a fine of Rs. 2,000/-, in default, sentencing him to undergo Rigorous Imprisonment for three months for the offence under Section 363 IPC; and further sentencing him to undergo Rigorous Imprisonment for ten years along with a fine of Rs. 3,000/-, in default, sentencing him to undergo Rigorous Imprisonment for four months for the offence under Section 5(1) r/w Section 6 of Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for brevity).
2. The case of the prosecution in brief is as follows:
(ii) The parents of the appellant/accused, viz., A2 and A3 were also responsible for the stay of the appellant/accused and the victim girl at Sangagiri Hills, till the victim was secured by the police on 15.07.2014.
(iii) P.W.1, the grandfather of the victim girl, preferred a complaint, which was marked as Ex. P1. The victim girl could not be traced immediately and after a lapse of six months, she was traced along with the appellant/accused, who, according to the prosecution, kidnapped her.
3. On behalf of the prosecution, twenty four witnesses were examined as P. Ws. 1 to 24 and 14 documents were marked as Exs. P1 to P14. On behalf of the defence no one was examined nor any document was marked. No Material Objects were also recovered.
4. P.W.1, the grandfather of the victim girl, as defacto complainant, has stated in his complaint-Ex. P1 that on 28.06.2014, the victim girl came to his house for getting Transfer Certificate and on the same day at about 8.00 p.m., she went to buy shampoo, but she did not return home and on enquiry, he came to know that the appellant/accused kidnapped her by inducing her. He would also state that the victim girl, at that time, was 17 years old. P.W.2 is the victim girl, who did not support the case of the prosecution at all and she was clear in her deposition that she had known the appellant/accused only as a student of the school and he did not kidnap her at all. Her deposition was disbelieved by the trial Court. P.W.3 is the mother of the victim girl, who vouched the fact that the victim was found missing and during the relevant time, she was living with her grandparents. P.W.4 is the father of the victim girl, who had deposed that he was informed that the appellant/accused had kidnapped the victim girl; however, P.W.4 himself was not sure as to whether the appellant/accused had kidnapped her and he was sounding tentative during his cross-examination. However, contradiction by the said witness was discarded by the trial Court. P.W.5 is the grandmother of the victim girl and she supported the evidence of P.W.1, her husband and the grandfather of the victim (P.W.2). P.Ws. 6 to 10 are all persons from the same village, who are hearsay witnesses, who had heard about the missing of the girl through P.W.1, P.W.3, P.W.4 and
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