Research › Search › Judgment

Kerala High Court · body

2024 DIGILAW 1368 (KER)

Abin Joseph, S/o Joseph v. State Of Kerala

2024-10-24

A.BADHARUDEEN

body2024
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. 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 order of the learned Magistrate, apart from the evidence of PW2 and PW3 in the above line, PW10, the doctor who had examined the victim, found contusions all over his back, penile tenderness, old contusions over both groin (the area where the lower abdomen meets the upper thigh). 7. Going by the order of the learned Magistrate, apart from the evidence of PW2 and PW3 in the above line, PW10, the doctor who had examined the victim, found contusions all over his back, penile tenderness, old contusions over both groin (the area where the lower abdomen meets the upper thigh). PW10 also deposed that the victim told him that the child was attacked with glove like material on the part of penis. Accordingly, the learned Magistrate found that there was no justification for touching or attacking the sexual organs and the part around it of the victim, who was admitted for treatment at the Assissi hospital. Thus the learned Magistrate found that offences under Sections 9 and 10 of the POCSO Act as well as Section 82 of the JJ Act also made out from the evidence. Accordingly, the learned Magistrate decided to commit the case. 8. Coming to Sections 9 and 10 of the POCSO Act, the same read as under: "9. Thus the learned Magistrate found that offences under Sections 9 and 10 of the POCSO Act as well as Section 82 of the JJ Act also made out from the evidence. Accordingly, the learned Magistrate decided to commit the case. 8. Coming to Sections 9 and 10 of the POCSO Act, the same read as under: "9. Aggravated Sexual Assault:--(a) Whoever, being a police officer, commits sexual assault on a child-- (i) within the limits of the police station or premises where he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) in the course of his duties or otherwise; or (iv) where he is known as, or identified as a police officer; or (b) whoever, being a member of the armed forces or security forces, commits sexual assault on a child-- (i) within the limits of the area to which the person is deployed; or (ii) in any areas under the command of the security or armed forces; or (iii) in the course of his duties or otherwise; or (iv) where he is known or identified as a member of the security or armed forces; or (c) whoever being a public servant commits sexual assault on a child; or (d) whoever being on the management or on the staff of a jail, or remand home or protection home or observation home, or other place of custody or care and protection established by or under any law for the time being in force commits sexual assault on a child being inmate of such jail or remand home or protection home or observation home or other place of custody or care and protection; or (e) whoever being on the management or staff of a hospital, whether Government or private, commits sexual assault on a child in that hospital; or (f) whoever being on the management or staff of an educational institution or religious institution, commits sexual assault on a child in that institution; or (g) whoever commits gang sexual assault on a child. Explanation.-- when a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or (h) whoever commits sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or (i) whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or (j) whoever commits sexual assault on a child, which-- (i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (l) of section 2of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or (ii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or (k) whoever, taking advantage of a child’s mental or physical disability, commits sexual assault on the child; or (l) whoever commits sexual assault on the child more than once or repeatedly; or (m) whoever commits sexual assault on a child below twelve years; or (n) whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child; or (o) whoever, being in the ownership or management or staff, of any institution providing services to the child, commits sexual assault on the child in such institution; or (p) whoever, being in a position of trust or authority of a child, commits sexual assault on the child in an institution or home of the child or anywhere else; or (q) whoever commits sexual assault on a child knowing the child is pregnant; or (r) whoever commits sexual assault on a child and attempts to murder the child; or (s) whoever commits sexual assault on a child in the course of [ communal or sectarian violence or during any natural calamity or in any similar situations]; or (t) whoever commits sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or (u) whoever commits sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated sexual assault. 2[(v) whoever persuades, induces, entices or coerces a child to get administered or administers or direct anyone to administer, help in getting administered any drug or hormone or any chemical substance, to a child with the intent that such child attains early sexual maturity.] is said to commit aggravated sexual assault. 10. Punishment for aggravated sexual assault:- Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine. ” 9. Section 9 deals with aggravated sexual assault. Section 9(e) deals with commission of sexual assault by the management or staff of a hospital, whether Government or private, commits sexual assault on a child in that hospital and as per Section 10 the same is punishable for a term which shall not be less than 5 years but which may extend to 7 years and also liable to fine. What is aggravated sexual assault? Section 2(b) provides that aggravated sexual assault has the same meaning as assigned to Section 9. Sexual assault is defined under Section 7 of the POCSO Act and the same reads as under: "7. Sexual assault : Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” Thus doing acts dealt in Section 7 with sexual intent would attract sexual assault. Here the allegation is causing injury on the penis. Therefore, the question is whether merely causing injury on the penis of a child by itself would attract an offence dealt under Section 9 punishable under Section 10 of POCSO Act? Here the allegation is causing injury on the penis. Therefore, the question is whether merely causing injury on the penis of a child by itself would attract an offence dealt under Section 9 punishable under Section 10 of POCSO Act? At the same time, Section 30 of POCSO Act deals with presumption of culpable mental state and it has been provided that (1) in any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution and (2) for the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. Thus reading the penal provision under Sections 7, 9, 10 etc. under the POCSO Act, touching on the private part or penis of a victim with sexual intent is an offence. Sexual intent is nothing but the culpable mental state of the accused, for which presumption under Section 30 of the POCSO Act is there and it is for the accused to prove that he had no such mental state while doing the overt act. Therefore, at this stage, this Court holds that offences under Sections 9 and 10 of POCSO Act are made out, prima facie. In view of the discussion, this contention is found against the petitioners with liberty to raise the same before the Special Court. 10. Accused 1 and 2 challenged inclusion of Section 82 of the Juvenile Justice Act in this case. In view of the discussion, this contention is found against the petitioners with liberty to raise the same before the Special Court. 10. Accused 1 and 2 challenged inclusion of Section 82 of the Juvenile Justice Act in this case. Coming to Section 82 of the JJ Act, the same deals with corporal punishment (the use of physical force to cause pain or discomfort usually to discipline a child) and Section 82 provides as under: "Corporal punishment (1) Any person in-charge of or employed in a child care institution, who subjects a child to corporal punishment with the aim of disciplining the child, shall be liable, on the first conviction, to a fine of ten thousand rupees and for every subsequent offence, shall be liable for imprisonment which may extend to three months or fine or with both. (2) If a person employed in an institution referred to in sub-section (1), is convicted of an offence under that sub-section, such person shall also be liable for dismissal from service, and shall also be debarred from working directly with children thereafter. (3) In case, where any corporal punishment is reported in an institution referred to in sub-section (1) and the management of such institution does not cooperate with any inquiry or comply with the orders of the Committee or the Board or court or State Government, the person in-charge of the management of the institution shall be liable for punishment with imprisonment for a term not less than three years and shall also be liable to fine which may extend to one lakh rupees.” 11. Here the specific evidence given by PW2 and PW3 is that the accused herein assaulted the defacto complainant even on his private parts by putting a rubber like structure on his penis and poured orange juice etc. when the child of PW2 and PW3 hesitated to take food. This evidence is fortified by the doctor examined as PW10. If so, prima facie, an offence under Section 82 of the JJ Act would attract as found by the Magistrate. 12. Having considered the factual matrix of the case, Annexure A4 is only to be justified. In view of the matter, the prayer in this Crl.M.C is liable to fail. 13. Accordingly this Crl.M.C stands dismissed. Registry shall forward a copy of this order to the jurisdictional court for information and further steps.