Safiya Malik

The High Court of Madras at Madurai, Division Bench of Justice A.D. Jagadish Chandira and Justice K. Rajasekar has partly allowed criminal appeals, setting aside convictions under the Protection of Children from Sexual Offences (POCSO) Act and instead convicting the appellants under provisions of the Indian Penal Code (IPC). The Court directed that the sentences imposed on Accused No.1 shall run concurrently and the period of sentence already undergone by both appellants be set off under Section 428 Cr.P.C. The judgment also addressed the determination of the victim's age and the issue of misjoinder of charges, affirming that a mere misjoinder is not sufficient to invalidate findings or sentences unless a failure of justice is occasioned. The Court further directed the disbursement of compensation to the victim under the "Tamil Nadu Victim Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimes - 2018."

The appeals arose from a judgment passed in Spl.C.C.No.1/2012 by the Fast Track Mahila Court, Ramanathapuram, dated April 23, 2022. The appellant in Crl.A.(MD). No.370 of 2022 was Accused No.2, and the appellant in Crl.A.(MD). No.445 of 2022 was Accused No.1. Accused No.1 was charged under Sections 7 and 8 of the POCSO Act and Section 506(i) of IPC. Accused No.2 was charged under Section 5(1) and 6 of the POCSO Act. Following the trial, Accused No.1 was found guilty under Section 7 of the POCSO Act, punished under Section 8 of the POCSO Act with five years rigorous imprisonment and a fine of Rs.50,000/-, and also found guilty under Section 506(i) with two years rigorous imprisonment and a fine of Rs.50,000/-. Both sentences were ordered to run concurrently. Accused No.2 was found guilty under Sections 5(1) and punished under Section 6 of the POCSO Act, sentenced to imprisonment for life until death, and a fine of Rs.5,00,000/-.

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The prosecution's case detailed that the victim girl, aged about 16 years, was the daughter of Accused No.1 and P.W.2. In 2018, while studying in VII standard, the victim experienced an incident where her father, Accused No.1, in an inebriated condition, pressed her breast while she was sleeping in the living room. Believing it to be accidental, she did not report it. Accused No.1 returned from abroad during the COVID-19 pandemic in 2020. At this time, the victim was in IX standard, and Accused No.1 repeatedly molested her in the living room. When she threatened to inform her mother, Accused No.1 threatened her with dire consequences, stating he would kill her and her mother.

The victim's inability to bear her father's actions led to continuous crying and mental agony, which she initially kept to herself due to fear. Observing her unexplained weeping, her mother, P.W.2, informed relatives. After questioning, P.W.2 took the victim to a doctor, who found her physically well. As her behaviour did not change, P.W.2 and others concluded she was possessed by evil spirits. On September 20, 2021, at approximately 7:00 PM, the victim was taken to Accused No.2, known for performing rituals to ward off evil spirits.

Accused No.2 informed P.W.2 that the victim would die within 15 days and suggested she stay at his premises for three days for rituals to save her life. Despite initial reluctance, P.W.2 agreed. Accused No.2 then mixed a powder in milk and gave it to the victim, causing nausea and drowsiness. He directed the victim to sleep on a cot in his hut to facilitate interaction with the "evil spirit" and asked P.W.2 to sleep outside. Accused No.2 then slept with the victim, and while she recounted her father's sexual assault, he touched her body under the guise of performing rituals. Despite her attempts to resist, she was unable to move. Accused No.2 repeatedly committed aggravated penetrative sexual assault on the victim throughout the night.

The next morning, Accused No.2 instructed the victim to bathe and asked P.W.2 to fetch clothes. The victim, feeling ashamed and fearful, did not inform her mother about Accused No.2's misconduct. Later that morning, P.W.7, the victim's maternal grandmother, arrived, scolded P.W.2 for bringing the victim to such a place, and took them home. The victim remained ashamed, depressed, and unable to concentrate on her activities.

On October 30, 2021, between 7:00 PM and 8:00 PM, Accused No.1 returned home in an inebriated state, using filthy language towards the victim and P.W.2, witnessed by neighbours. Overwhelmed by this and her previous assaults, the victim attempted to consume insecticide. She was rescued, and at that moment, she disclosed the sexual assaults by both Accused No.1 and Accused No.2 to her mother and relatives. The following day, P.W.1 contacted Child Helpline 1098 and reported her sufferings. On November 1, 2021, a representative from the Child Helpline NGO visited her home, and with their assistance, P.W.1, accompanied by P.W.2, lodged a police complaint at Ramanathapuram Police Station at approximately 9:00 PM.

P.W.10, Sub Inspector of Police, All Women Police Station, Ramanathapuram, received the complaint (Ex.P.1) and registered an F.I.R. (Ex.P.9) in Crime No.21 of 2021 under Sections 3, 4, 5(1), 6 of POCSO Act read with 506(1) of IPC. The investigation was subsequently handed over to P.W.13, Inspector of Police. P.W.13 inspected the victim's house, prepared an Observation Mahazar (Ex.P.3) and Rough Sketch (Ex.P.12), and recorded statements from witnesses. Accused No.1 and Accused No.2 were arrested on the same day and remanded to judicial custody. The victim underwent medical examination by P.W.5, a Gynaecology Doctor, whose report (Ex.P.6) indicated the possibility of sexual assault. The victim's statement was recorded under Section 164 of Cr.P.C. The Head Mistress of the victim's school, P.W.6, issued a date of birth certificate (Ex.P.7). Material objects were sent for forensic examination. The investigation was completed by P.W.14, who filed the Final Report on December 15, 2021.

The Trial Court framed charges against Accused No.1 under Sections 7 and 8 of the POCSO Act, 2012, and Section 506(i) of IPC, and against Accused No.2 under Sections 5(1) and 6 of the POCSO Act. The prosecution examined P.W.1 to P.W.14, and Exs.P.1 to P.17 were marked. The defence examined D.W.1 to D.W.6, and Exs.D.1 to D.9 were marked.

The Court observed the arguments regarding misjoinder of charges, where the defence contended that clubbing the offences against Accused No.1 (sexual assault in 2018 and 2020) with those against Accused No.2 (aggravated penetrative sexual assault in September 2021) caused prejudice. The Court stated, “The clause (d) of the Section 223 of the Criminal Procedure Code envisages joint trial of persons, who have committed difference offences but in the course of same transactions.” It referenced the Hon'ble Apex Court's judgement in Balbir vs. State of Haryana and others [AIR 2000 SC 11], which held that “the real and substantial test for determining whether several offences are connected together so as to form the same transaction, depends upon whether they are so related to one another in point of purpose or cause or impact or the principle and subsidiary acts as to constitute one continuous action.”

The Court further referred to Nasib Singh vs State of Punjab [AIR online 2021 SC 871], which formulated principles for joint and separate trials, including that “While applying the principles enunciated in Sections 218-223 on conducting joint and separate trials, the trial court should apply a two-pronged test, namely, (i) whether conducting a joint/separate trial will prejudice the defence of the accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay.”

The Court noted that the first offence by Accused No.1 in 2018 was a starting point, continuing into 2020, leading to the victim's depression, which then prompted her family to take her to Accused No.2. The Court observed, “Hence, we are of the view that, the acts of Accused Nos.1 and 2 shall be a form and part of the same transactions.” Even if misjoinder were present, the Court stated, “Section 464 of the Criminal Procedure Code, prohibits setting aside the finding or sentence on the ground of misjoinder of charges.” It added that for such a ground to invalidate findings, “there is a failure of justice occasioned.”

The Court cited Darbara Singh vs. State of Punjab [AIR 2013 SC 840], which defined 'failure of justice' as “an extremely pliable or facile expression, which can be made to fit into any situation in any case.” The Court found no such prejudice caused to the accused in this trial.

Regarding the evidence, the Court placed high importance on the victim's testimony. It observed, “The evidence of P.W.1/ victim girl, is that while she was studying VIIth standard, she attained puberty, and her house contains two rooms and a living room.”

The Court recorded her account of the incidents involving Accused No.1 in 2018 and 2020, and the subsequent events leading to her visit to Accused No.2, including the administration of a "powder in milk" and the aggravated penetrative sexual assault. The Court stated, “On careful analysis of the entire evidence of P.W.1, we found that, she has narrated entire incidents thoroughly and clearly.”

The defence's contention regarding P.W.2's alleged illicit intimacy with P.W.4 and its impact on the victim's testimony was considered. The Court noted that this major defence was not elicited during P.W.1's cross-examination. It observed, “The entire evidence of P.W.1, in cross examination shows that, P.W.1 was subjected to cross examination concerning various facts such as non-disclosure of occurrence, immediately after commission of same, manner in which the occurrence had taken place, and suggestion denying the allegation etc.,”

The Court further stated, “The admission of P.W.2 regarding her relationship with P.W.4 may be helpful to show that they may have illicit intimacy, whereas no evidence was placed on record to show that the victim girl had mentally disturbed and depressed based on this illicit intimacy between P.W. 2 and P.W.4.” It concluded that the defence of false implication had not been probabilized. The Court held the principle that “the evidence of a prosecutrix in a case of sexual assault is of the same value as that of an injured witness and conviction can be made on the basis of the sole testimony of the prosecutrix.”

The Court also addressed the defence's argument about the suppression of a prior complaint lodged with the Child Helpline. It observed, “The 'Child Helpline' is only a NGO, who used to assist based on the distress call made, through helpline. They help children and guide them for protection. They are not statutory authority and do not have any power to investigate or to initiate any legal action against any person.” The Court found no merit in the contention that a statement recorded by the Child Helpline official was suppressed.

Regarding the delay in lodging the complaint, the Court stated, “It is well settled law, that delay in setting the law in motion by lodging complaint, is normally viewed by Courts with suspicion because there is possibility of collection of evidence against the accused.” However, it accepted the prosecution's explanation, noting that the victim was sexually assaulted by her father and then a priest, and was under constant fear and severe depression, having been accused by family members of being mentally unstable. The Court observed, “Only after the occurrence on 30.10.2021, she had received proper counselling by the NGO-child helpline. Only thereafter, she gained confidence and lodged complaint.”

Concerning the victim's age, the Court noted that P.W.6, the Head Mistress, issued Ex.P.7, the age certificate, based on entries in the Admission Register. However, the Court observed, “She was not having any direct knowledge regarding the entries made in the Admission Register of the victim girl. Further, the admission register was also not produced before the Trial Court.” The Court concluded, “Hence, this certificate is not fulfil the requisites of Section 35 of the Indian Evidence Act, and also it is not a birth certificate issued by the School. In such circumstances, we of the view that the age certificate issued by P.W.6 is not sufficient to prove the age of the victim girl.” The prosecution also failed to prove the age through an ossification test, as the radiologist was not examined and the report not marked. Therefore, the Court found that “the prosecution has failed to prove the age of the victim girl in accordance with Section 94(2) of the Juvenile Justice Act, so as to attract the offences under POCSO Act.”

The Court then considered whether the accused could be convicted under the IPC in the absence of a POCSO conviction due to the age not being proved. It referred to a Division Bench decision in M. Loganathan vs. State of Tamil Nadu [2016 (3) MLJ (Crl.) 755], which held that Section 376 IPC is a minor offence to Section 4 of the POCSO Act. The Court stated, “Section 222(1) of Cr.P.C, empower the Criminal Court, when a person, who charged with an offence and facts proved are reduce it to a minor offence, he may be convicted of the minor offence.” It concluded that Section 354 of IPC is a minor offence for Sections 7 and 8 of the POCSO Act, and Section 376(1) of IPC is a minor offence for Sections 5(1) and 6 of the POCSO Act.

In the result, these criminal appeals are partly allowed in part in the following terms.

The conviction of the appellant/ Accused No.1 in Crl.A.(MD). No. 445 of 2022 for offence under Sections 8 of POCSO Act is hereby set aside and instead, he is convicted under Sections 354 and 506(i) of IPC and sentenced to undergo simple imprisonment for three years and to pay fine of Rs.10,000/-, in default, 6 months simple imprisonment for the offence under Section 354 of IPC and 1 year simple imprisonment and to pay fine of Rs.5,000/-, in default, 3 months simple imprisonment for the offence under Section 506(i) of IPC.

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The conviction of the appellant/ Accused No.2 in Crl.A.(MD). No. 370 of 2022 under Section 6 of POCSO Act is hereby set aside and instead, he is convicted under Section 376(1) of IPC and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.25,000/-, in default, one-year simple imprisonment.

It is directed that the sentences imposed herein on the appellants/ Accused No.1 shall run concurrently and the period of sentence already undergone by the appellants/ Accused Nos.1 and 2 is directed to be set off under Section 428 Cr.P.C

Advocates Representing the Parties:

For the Petitioners: Mr. G. Karuppasamy Pandian, Advocate for Accused No.1; Mr. R. Anand, Advocate for Accused No.2

For the Respondents: Mr. A. Thiruvadi Kumar, Additional Public Prosecutor

Case Title: XXX v. State of Tamil Nadu

Case Number: Crl.A.(MD). Nos. 370 and 445 of 2022

Bench: Justice A.D. Jagadish Chandira and Justice K. Rajasekar

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