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2024 DIGILAW 1089 (KER)

Jijimon & Jiji S/o Thomas v. State of Kerala

2024-08-30

C.S.SUDHA

body2024
JUDGMENT : C.S. SUDHA, J. 1. In this appeal filed under Section 374 Cr.P.C., the appellant who is the accused in S.C.No.27/2012 on the file of the Court of Session, Kottayam, challenges the conviction entered and sentence passed against him for the offence punishable under Section 354 IPC. 2. The prosecution case is as follows:- CW2 was a nine year old girl studying in the 4 th standard of St. Antony's LP School, Vellikkulam during the academic year 2007-2008. The accused was her class teacher. On 25/02/2008 at 03:00 p.m. inside the 4 th standard class room and in the lean-to of the main school building, the accused outraged the modesty of CW2 by squeezing her breast, stomach and below the navel. Though a complaint was given to the Headmaster and Manager of the school, they failed to take any action. Hence PW2, the mother of CW2 gave Ext.P4 FIS dated 26/05/2008 to the police based on which PW6, the then S.I., Erattupetta registered crime no.203/2008, Erattupetta police station, that is, Ext.P4(a) FIR alleging the commission of the offence punishable under Section 354 IPC. PW6 after completing the investigation submitted the charge sheet/final report before the jurisdictional magistrate. 3. The jurisdictional magistrate after taking cognizance and on appearance of the accused, and after completing the necessary formalities commenced the trial of case. CW1, the mother; CW2, the victim and CW3, the father were examined as PWs 1 to 3 respectively. By then the Children's Court as contemplated under Section 25 of the Commissions for Protection of Child Rights Act, 2005 (the Act) was notified. Hence the learned magistrate committed the case to the Sessions Court, which court made over the case to the Children's Court for trial and disposal. A charge under Section 354 IPC was framed, read over and explained to the accused to which he pleaded not guilty. 4. On behalf of the prosecution, PWs1 to 6 were examined and Exs.P1 to P9 were got marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied those circumstances and maintained his innocence. 5. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied those circumstances and maintained his innocence. 5. As the Children's Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C, he was asked to enter on his defence and adduce evidence in support thereof. DWs1 to 3 were examined on behalf of the accused. No documentary evidence was adduced by the accused. 6. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence punishable under Section 354 IPC and hence convicted and sentenced him to rigorous imprisonment for two years and to a fine of ?10,000/- and in default, to rigorous imprisonment for six months. Aggrieved, the accused has come up in appeal. 7. The only point that arises for consideration in this appeal is whether the conviction entered and sentenced passed against the accused by the trial court are sustainable or not. 8. Heard both sides. 9. As stated earlier, the jurisdictional magistrate had commenced the trial of the case and three witnesses were examined as PWs 1 to 3 respectively. Thereafter, the magistrate taking note of Section 25 of the Act and in the light of the dictum of this Court in Abdul Aziz v. C.I. of Police, ILR 2012 (1) Ker. 74 : 2012 KHC 2235 committed the case to the Court of Session, Kottayam after complying with the necessary legal formalities. By the time de novo trial before the Children's Court commenced, CW2, the victim and CW3, the father were no more. Hence their testimony recorded before the jurisdictional magistrate were marked by the trial court overruling the objection raised by the accused as Exts.P5 and P6 invoking Section 33 of the Evidence Act. Relying on Exts.P5 and P6 as well as the testimony of the mother examined as PW2 before the Children's Court, the court arrived at the conclusion of guilt of the accused and hence proceeded to convict and sentence him. 10. The learned senior counsel appearing for the accused/appellant submitted that a gross error has been committed by the trial court by marking Exts. P5 and P6 relying on Section 33 of the Evidence Act. 10. The learned senior counsel appearing for the accused/appellant submitted that a gross error has been committed by the trial court by marking Exts. P5 and P6 relying on Section 33 of the Evidence Act. The Act came into force w.e.f. 20/01/2006. As per GOP No.22/2009/SWD dated 03/06/2009, the Government notified the “Principal Sessions Court in each district as the Children's Court for the purpose of providing speedy trial of offences against children or of violation of child rights”. Thereafter as per GOP No.23/2015/SJD dated 31/03/2015 which was issued in super-session of the earlier notification, the Government of Kerala notified the Additional District and Sessions Court-I in the districts shown in the notification as the Children's Court. CW2, the child was examined on 11/01/2010 and CW3, the father on 02/03/2010 before the magistrate court, by which time the Children's Court had already been notified and established. Therefore, the magistrate court had no jurisdiction to try the case. As there was inherent lack of jurisdiction, Exts.P5 and P6 recorded by such a court are inadmissible pieces of evidence and so could not have been admitted in evidence under Section 33 of the Evidence Act. In support of this argument reference was made to the dictums in Varghese v. State, 1976 KHC 226 ; Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 : 1954 KHC 475 ; Om Prakash Agarwal v. Vishan Dayal Rajpoot, AIR 2018 SC 5486 : 2018 KHC 6804 and Kinarullaparambath Adbul Azeez v. Valiyaparambath Vasu, 2019 (4) KHC 247 . 11. Per contra, it was submitted by the learned Public Prosecutor that there was no inherent lack of jurisdiction for the magistrate court. Even after the Act and the establishment of the Children's Court, the magistrate court continued to have jurisdiction to try the offence punishable under Section 354 IPC. Children's Court was established for the purpose of providing speedy trial of offences against children or of violation of child rights. After the notification establishing the Children's Court was issued, the magistrate court can only be termed to be a wrong forum and not one which lacked inherent jurisdiction and so the trial court was right in relying on Section 33 of the Evidence Act and admitting Exts.P5 and P6 in evidence, argued the learned Public Prosecutor. After the notification establishing the Children's Court was issued, the magistrate court can only be termed to be a wrong forum and not one which lacked inherent jurisdiction and so the trial court was right in relying on Section 33 of the Evidence Act and admitting Exts.P5 and P6 in evidence, argued the learned Public Prosecutor. In support of the arguments reference was made to the dictums in Magnum Developers v. Lal Shah Baba Dargah Trust, 2016 KHC 2096 , Jose @ Kolli Jose v. State of Kerala, (1973) 3 SCC 472. 12. In Kiran Singh (Supra) it has been held that it is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity can be set up whenever and wherever it is sought to be enforced or relied upon. In Varghese (Supra) it was held that for attracting Section 33 of the Evidence Act, the earlier deposition must have been made in a judicial proceeding and that a proceeding without jurisdiction is not a judicial proceeding and so the evidence of witness given in such a proceeding cannot be used under Section 33 of the Evidence Act on a re-trial before a competent court. 12.1. In Om Prakash Agarwal (Supra) it has been held that when the statute provides that cognizance of a particular cause is to be taken by a particular court, no other court can take cognizance, since legislature never creates or provides for parallel jurisdiction in two different courts for taking cognizance of a case. 12.2. In Kinarullaparambath Adbul Azeez (Supra) it was held that when Gram Nyayalayas are not notified under Section 3 of the Kerala Buildings (Lease and Rent Control) Act, 1965 as rent control courts for trial and disposal of rent control petitions, Nyayadhikaris had no subject matter jurisdiction on such petitions, thereby rendering orders passed by them on rent control petitions a nullity and non-est. When the Nyayadhikari has no jurisdiction to try and dispose of cases under the BRC Act, evidence recorded in the proceedings cannot be relied on by the rent control court later for deciding the cases. 13. It is apparent on a reading of the aforesaid dictums that the same related to cases where the deposition had been recorded or cognizance taken by courts which lacked inherent jurisdiction. 13. It is apparent on a reading of the aforesaid dictums that the same related to cases where the deposition had been recorded or cognizance taken by courts which lacked inherent jurisdiction. Now the question is, did the magistrate court which recorded Exts.P5 and P6 testimonies of CW2 and CW3 lack inherent jurisdiction? I refer to Section 25 of the Act which reads thus:- “25. Children's Courts - For the purpose of providing speedy trial of offences against children or of violation of child rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify at least a court in the State or specify, for each district, a Court of Session to be a Children's Court to try the said offences: Provided that nothing in this section shall apply if- (a) a Court of Session is already specified as a special court; or (b) a special court is already constituted, for such offences under any other law for the time being in force.” A reading of the Section makes it clear that it is for the purpose of providing speedy trial of offences against children or of violation of their rights, Children's Courts came to be established. The Act nowhere says that exclusive jurisdiction has been conferred on the children's court. Even after the establishment of the children's court, the magistrate courts continued to be competent to try the offence under Section 354 IPC and only in cases where the victim was a child, the case was required to be considered by the Children's Court. It would be apposite to refer to the dictum of the Apex Court in Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari, AIR 2021 SC 5368 . In the said case cognizance was taken by a magistrate court for the offences punishable under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. It would be apposite to refer to the dictum of the Apex Court in Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari, AIR 2021 SC 5368 . In the said case cognizance was taken by a magistrate court for the offences punishable under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Interpreting Section 14 of the said Act and the proviso thereto it was held that in view of the insertion of the proviso to Section 14 and considering the object and purpose, for which, the proviso has been inserted, that is, for the purpose of providing for speedy trial and the object and purpose stated therein, it is advisable that the Court so established or specified in exercise of powers under Section 14, for the purpose of providing for speedy trial directly take cognizance of the offences under the Atrocities Act. But at the same time, merely on the ground that cognizance of the offences under the Atrocities Act was not taken directly by the Special Court constituted under Section 14 of the Atrocities Act, the entire criminal proceedings cannot be said to have been vitiated and cannot be quashed and set aside solely on the ground that cognizance had been taken by a magistrate and thereafter the case committed to the Special Court/Court of Session. It has been further held that the words used in the second proviso to Section 14 are “Court so established or specified shall have power to directly take cognizance of the offences under this Act”. The word “only” is conspicuously missing. If the intention of the legislature was to confer the jurisdiction to take cognizance of the offences under the Atrocities Act exclusively with the Special Court, the wording would have been “that the Court so established or specified only shall have power to directly take cognizance of offences under this Act.” Therefore, merely because further and additional powers have been given to the Special Court also to take cognizance of the offences under the Atrocities Act, would not mean that as cognizance had been taken by a magistrate for the offences under the Atrocities Act and thereafter the case committed to the Special Court, would vitiate the entire criminal proceedings requiring it to be quashed and set aside. 14. 14. Reverting back to the case on hand, the Act nowhere says that exclusive jurisdiction has been conferred on the children's court unlike in the case of offences under the PoCSO Act. Therefore, the learned Public Prosecutor was certainly justified and right in her submission that the magistrate court which had recorded Exts.P5 and P6 testimony of the child and her father was only a wrong forum and not a court which lacked inherent jurisdiction. 15. Now coming to Section 33 of the Evidence Act which reads:- “ 33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated .––Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided –– that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.––A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.” 16. The ingredients of the Section are –(i) that the earlier proceedings were between the same parties or their predecessor - in – interest, (ii) that the averse party in the first proceeding had the right and opportunity to cross - examine, and that the question in issue was substantially the same in the first as in the second proceeding. In this case all the aforesaid ingredients are satisfied and therefore the trial court was right in admitting Exts.P5 and P6 statements in evidence. 17. The prosecution relies on Exts.P5 and P6 statements as well as the testimony of PW2, the mother to prove the case. In this case all the aforesaid ingredients are satisfied and therefore the trial court was right in admitting Exts.P5 and P6 statements in evidence. 17. The prosecution relies on Exts.P5 and P6 statements as well as the testimony of PW2, the mother to prove the case. It was submitted by the learned senior counsel for the accused/appellant that PW2, the mother, has only hearsay knowledge about the incident and hence her testimony relating to the same is inadmissible. On the other hand, the learned Public Prosecutor referred to illustration (j) of Section 8 of the Evidence Act and submitted that her deposition is very much admissible. In reply, it was submitted on behalf of the accused/appellant that PW2, the mother had given Ext.P1 FIS long after the incident, that is, more than three months' after the incident and therefore the said illustration is not in any way attracted. 18. Section 8 and illustration (j) of Section 8 of the Evidence Act reads: - “ 8. Motive, preparation and previous or subsequent conduct. ––Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Illustrations (a) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (d) xxx xxx xxx (e) xxx xxx xxx (f) xxx xxx xxx (g) xxx xxx xxx (h) xxx xxx xxx (i) xxx xxx xxx (j) The question is, whether A was ravished. The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant. The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant, as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157”. 19. The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant, as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157”. 19. The complaint referred to in the illustration refers to a complaint about the incident made by the victim shortly after the incident to another person, in the present case, to the mother. The term 'complaint' in the illustration does not refer to the complaint given to the police as submitted on behalf of the accused. PW2 deposed that CW2, her daughter had told her about the incident. The complaint of CW2 to her mother was her subsequent conduct which is having a direct bearing on the fact in issue and hence admissible in evidence. Therefore illustration (j) to Section 8 of the Evidence Act is also clearly attracted. 20. It is true that except PW2, the other prosecution witnesses do not support the case. PW1, Vicar, St.Antony's Syrian Catholic Church, Vellikkulam deposed that CW3, the father of CW2 had given a complaint against the accused. When PW1 was asked what exactly was the complaint, he answered that the allegation was that the accused had put his hand inside the dress of the child. PW1 turned hostile and denied having given any statement to the police. The contradictions in his statement were marked as Exts. P1 to P3. In the cross-examination PW1 deposed that he was convinced that the complaint was a fabricated one; that he had asked the child regarding the incident four times and each time she had given different versions; that when he asked the child under whose instructions she was giving such a statement, the child replied that it was on her mother's instruction; that the child's father was conducting a provision store nearby; that Libin, the brother of CW2 had handed over some books containing obscene material; PW1 to a question as to who had informed him that Libin was in possession of such books, answered that it was the accused; that he had not seen obscene books being taken from the shop of CW3; that during a PTA meeting, some obscene books had been burnt and that it was thereafter the present case had come up. 21. PW2, the mother of the victim stands by the prosecution case. 21. PW2, the mother of the victim stands by the prosecution case. PW3, a neighbour of CW2 turned hostile and deposed that he does not know about the incident and he denied having given any statement to the police. The contradiction in his statement has been marked as Ext.P7. In the cross-examination he deposed that in the PTA meeting, some books that had been taken from the shop of CW3 had been burnt, but he is not sure whether it contained any obscene material. He also deposed that Paul (CW3) had told him once that he would teach the accused a lesson 22. PW4, the Headmaster of the school during the relevant time admitted that a complaint had been given by the parents of the victim; that he had enquired with the child about the incident but the child did not give any reply. Thereafter he handed over the complaint to the Manager. He does not know what action was taken on the same as he was thereafter transferred from the school. In the cross-examination he deposed that though he had questioned the child about the incident, the latter did not say anything and that he felt that it was not a genuine complaint. To a question regarding the appearance/demeanour of CW2 when he had made enquiries, PW4 answered that the child was smiling. In the re-examination it was suggested to PW4 that the child had not responded to his queries because the child found it embarrassing to narrate the true facts to which he answered that the same was possible/probable. 23. On going through the deposition of the child and her father, that is, Exts.P5 and P6 and the deposition of PW2, I find no reasons to disbelieve them. The accused has taken up a defence that CW3 had a grudge against him and hence a false complaint has been made through the daughter. According to the accused some obscene books (described by the trial court as 'yellow books' ) had been seized from the brother of CW2 and from the shop of CW3. These books were burnt during a PTA meeting in the school. To establish his defence, the accused examined himself as DW1 and two other witnesses as DW2 and DW3. According to the accused some obscene books (described by the trial court as 'yellow books' ) had been seized from the brother of CW2 and from the shop of CW3. These books were burnt during a PTA meeting in the school. To establish his defence, the accused examined himself as DW1 and two other witnesses as DW2 and DW3. As rightly pointed out by the trial court, if in the PTA meeting such an incident of 'book burning' had taken place there would be some documents like minutes to evidence the same. No materials whatsoever have been brought on record to substantiate the said defence of the accused. The accused had also taken up a case that alcohol/liquor and obscene materials were being sold in the shop of CW3. This was found out by the accused. This led to seizing of the obscene materials from the shop and burning of the same in the PTA meeting. But none seem to have given any complaint to the police regarding the alleged illegal acts of CW3, whose shop admittedly was situated close to the school of CW2. The investigating officer in this case also has no such case and no complaint seems to have been given to the police regarding the same. Therefore it is difficult to believe the defence story. 24. On an entire reading of Exts.P5, P6 and the testimony of PW2, I find no grounds to disbelieve them. The delay in giving Ext.P1 FIS has also been explained. Initially the parents had given a complaint to the school authorities. The fact that such a complaint had been given is admitted by PW1 also. It was only when the school authorities did not take action, the mother gave Ext.P1 FIS to the police.PW2 deposed that they waited till the term examination of the child was over for giving the complaint to the police. PW2 also deposed that she had asked her daughter to attend school till the exams were over. Thereafter the child refused to attend the class of the accused and so she had to be admitted in a different school due to which the family had to shift residence also. PW2 also explained the circumstances under which the child had stated to the Vicar that she was giving a statement as instructed by her mother. Thereafter the child refused to attend the class of the accused and so she had to be admitted in a different school due to which the family had to shift residence also. PW2 also explained the circumstances under which the child had stated to the Vicar that she was giving a statement as instructed by her mother. According to PW2, the Vicar quite tersely asked her daughter as to where the accused had caught her and so the child might have said so. These aspects in the testimony of PW2 has not been discredited. CW2 and CW3 are seen extensively cross examined when they gave Ext.P5 and P6 statements. However, nothing has been brought out to discredit their testimony. Therefore, I find no reasons to disbelieve or discard their testimony. Hence the trial court was justified in relying on the materials on record and finding the accused guilty. There is no infirmity or perversity in the findings of the trial court calling for an interference by this Court. The appeal is liable to be dismissed and hence I do so. Interlocutory applications, if any pending, shall stand closed.