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2022 Supreme(Online)(KER) 51739
HIGH COURT OF KERALA
K VINOD CHANDRAN, C. JAYACHANDRAN, JJ
FRANCIS @ CHEECHI PANCHI – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 802 2015
ADVS.SRI.G.HARIHARAN SRI.PRAVEEN.H.G.HARIHARAN K.S.SMITHA(K/106/2012)V.R.SANJEEV KUMAR(K/000741/2017)ANJALY T.A(K/1694/2020)
The court established that mere age of a victim does not exempt defendants from proving consent, highlighting the importance of clear, corroborated evidence in sexual offence cases.
Headnote:
Criminal - Sexual Offences - Criminal Procedure Code 218, 219, 220 - Summary of legal provisions pertaining to separate trials for distinct offences; conditions for clubbing offences; recognition of the role of consent influenced the court's decision in acquitting some and convicting others based on evidence and legal definitions.
Fact of the Case:
The case involved multiple accused charged with the repeated sexual abuse of a minor girl over two years. The prosecution's reliance on distinct trials stemming from a single FIR was scrutinized due to ambiguities in charges and definitions related to consent and timeframes.
Finding of the Court:
The court found the prosecution's evidence insufficient to uphold convictions in certain instances due to issues with the clarity of charges and the credibility of the victim's testimony, while confirming convictions in others due to compelling evidence.
Issues: The key issues included the appropriateness of splitting charges under the Criminal Procedure Code, definitions of consent, the admissibility of evidence across trials, and the burden of proof regarding the victim's age and consent.
Ratio Decidendi: The court highlighted that separate trials for distinct offences must adhere strictly to procedural mandates; it underscored the necessity of clear evidence for consent in sexual offences, rejecting generalizations based on the perceived character of the victim or the ambiguity in timing.
Final Decision: Convictions upheld for some defendants, whilst others acquitted; emphasis on procedural compliance and evidentiary clarity led to mixed outcomes.
JUDGMENT
Vinod Chandran, J.
Abject failure of the prosecution is the bane of criminal judicial administration and the instant case is a classic example. A minor child was subjected to repeated sexual abuse over a period of time by a group of persons who were close acquaintances. The defence is also of consent, for reason of the child being above sixteen, a permissible legal ground, as the Indian Penal Code stood at that point of time. The Court split up the trial of the offences, looking at Section 219 (1) of the Criminal Procedure Code (Cr.PC), with over emphasis on the period of one year, within which three offences of the same kind could be clubbed together; without paying attention to the fact that Sections 218 to 220 speaks of the offences committed by one single person and not different accused, as also ignoring the definition of offences of the same kind as available in sub-section (2)
of Section 219 .
2. The accused, numbering seven, arrayed in a single final report was charged separately of some offences and others, charged together. The offences were committed by different accused, in the course of almost two years. The Final Report of the police itself split up the offences as committed prior to and later to 28.11.2006; the date divined by the police and not the victim. Prejudice was raised as a preliminary ground in one of the appeals, by A1 in the Final Report (F.R), on the ground that there should have been a joint trial of all the offences alleged in the F.R, of the single crime registered. However, no such application was filed under the proviso to Section 218 (1) Cr.P.C before the trial Court, at least with respect to the offences charged against him. The request was made in a Crl.M.C filed before this Court. It is admitted that the same was withdrawn by the petitioner and then a separate Crl.M.C was filed by the very same person joining with other five accused, which is still pending before this Court and placed before us along with these appeals; which obviously has become infructuous.
3. S.218 mandates, for every distinct offence of which any person is accused, a separate charge, tried separately; with the proviso that an accused, all the same, could make an application for joint trial which could also be permitted, if the Court opines that there would be no prejudice caused to the accused. Sub-section (2) saves the operation of Ss.219 to 223 from the rigour of S. 218(1). S.219 permits three offences of the same kind to be clubbed together, if the allegation is of those offences having been committed within the space of twelve months from the first to the last of such offences and S.220 any number of such offences, if the acts alleged constitute the same transaction; but again that committed by a single person.
4. Crime No.216/2008 of Puthenvelikara Police station led to the F.R filed by the C.I of Police, Vadakkekara, alleging commission of offences under Sections 366A and 376(2)(g) read with 34 IPC against seven accused. The incidents forming the basis of the allegations; as decipherable from the original charge sheet prepared by the trial Court, were ten in number. First, that, 'for about 11 months prior to 28.11.2006' the 1st accused Rajeev (A1) repeatedly raped the prosecutrix/victim, a girl of 16 years in the house rented out by him, when the victim went to that house to watch T.V. Secondly, it was alleged that during the same period 'a day after Onam', A2 (Sinoj) and A3 (Aji) friends and acquaintance of A1 raped the victim from the very same house. The third charge was that after 'five months of the aforesaid period, of 11 months before 28.11.2006', A4 (Lijith), friend of A1 raped the victim in the house of A1. Fourth charge was that, 'on a day after 28.11.2006', A1 kidnapped the victim in a Tempo Trax vehicle bearing Reg.No.KL-07J-3191, from the lawful guardianship of her father and took her to the house of one Chittedath Bhargavi Amma and raped her. Fifthly it was alleged that, A1 took the victim
