Court:KERALA HIGH COURT
Bench: JUSTICE K. Abraham Mathew
Maruthi vs. State of Kerala On 16 November 2017
Presumption – In a criminal presumption case can arise only when prosecution has adduced facts forming foundation of case – Thus, it is illegal to convict accused on basis of presumption u/s 29 of the Act alone.
1. This appeal is directed against the judgment of the Sessions Court, Kasaragod by which the appellant has been convicted of the offence under S. 4 of the Protection of Children from Sexual Offences Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of ` 2,000/- and in default of the payment of the fine to undergo rigorous imprisonment for two years more. The accusation was that on 17.4.2013 at about 1.35 in the afternoon he committed penetrative sexual assault on his niece aged about 4 1/2 years. Heard the learned counsel for the appellant (State Brief) and the learned Public Prosecutor.
2. PW 1 is the mother of the victim. PW 1 has two children then aged 472 years (the victim) and 10 months. The appellant is the husband of her sister. The two sisters, their children and the appellant were residing in the same house.
3. The allegation is that the appellant committed the offence of penetrative sexual assault punishable under S. 4 of the Protection of Children from Sexual Offences Act. S. 211 (2) Cr.P.C. provides that if the law which creates the offence gives it any specific name the offence may be described in the charge by that name only. In the charge framed by the learned Sessions Judge the offence is described as sexual assault. It is an offence different from penetrative sexual assault. The offence of sexual assault is punishable under S. 7 of the Act. R.65 of the Crl.Rules of Practice directs that in the charge the victim shall be described by his or her name and not by his position in the case as prosecutor or witness. This direction also has been violated in this case,
4. The alleged incident happened at 1.35 p.m. on 17.4.2013. The police registered the case on the basis of Ext. P1 information given by PW 1, the mother of the victim, on 26.4.2013. The explanation given is that the appellant had threatened her.
5. The victim was examined as PW 2. On 26.4.2017 she was examined by PW 8 Dr. Lissamma Mathew. Ext. P5 is the certificate issued by her. There was no evidence of general violence. She noted the following injuries:
Bruises around vulva and inner aspect of labia minora at 3’O clock and 9’O Clock positions, and tenderness around vulva. Hymen was intact.
6. The victim was not examined though she is shown as PW 2. The learned Sessions Judge has recorded that the victim did not respond to any question. So he entered the finding that she was “totally incapable to tender any evidence”.
7. The only evidence available to prove the occurrence is the testimony of PW 1 mother of the victim. In her examination-in-chief she stated that the child had complained of pain on passing urine. She got her examined by a doctor. On the date of occurrence at about 1.30 p.m. she saw the appellant sexually assaulting the victim. PW 1 made a hue and cry; the appellant gagged and assaulted her. He did not allow her to take the child to hospital. So he took the child to the police station and hospital only on 29th of the month.
8. PW 2 has not disclosed what she actually saw. There is only a bald statement that she saw the appellant sexually assaulting the child. This general statement cannot be acted upon to convict the appellant.
9. There are some suspicious circumstances in the case. As mentioned earlier, even before the date of occurrence the victim had allegedly complained of pain on passing urine and PW 1 took her to a doctor. If that is true, the doctor would have certainly noticed injuries in the private parts of the child. No evidence has been adduced to prove that PW 1 took the child to doctor as claimed by her. The alleged incident happened not in a closed room. It is difficult to believe that the appellant sexually assaulted the victim when her mother (PW 1) was present in the house. The explanation given by PW 1 for not taking the child to hospital on the date of occurrence is that the appellant assaulted her and prevented her from taking the child to hospital. But why she did not take the child to hospital or inform the police for more than ten days. There is no explanation.
10. In the cross-examination of PW 1 it was brought out that she had married twice. This had been objected to by the appellant. It also came out in her cross-examination that the appellant had asked for a loan and her refusal to do so created some problems in the family.
11. The learned Sessions Judge did not analyse the evidence in the case. He entered the finding of guilt in view of the presumption under S. 29 of the Protection of Children from Sexual Offences Act. A presumption in a criminal case can arise only when the prosecution has adduced the facts forming the foundation of the case. In this case that foundation has not been laid in the evidence of the prosecution witnesses. It is illegal to convict the accused on the basis of the presumption under S. 29 alone.
12. The appellant has been in custody since 31.4.2013 the date on which he was arrested during investigation. For the reasons stated above I hold that the prosecution has failed to prove its allegation that the appellant committed the offence of penetrative sexual assault, His conviction and the sentence imposed on him are liable to be set aside.
In the result, this appeal is allowed.
The conviction of the appellant for the offence under S. 4 of the Protection of Children from Sexual Offences Act and the sentence imposed on him for the said offence are set aside. He is acquitted of the said offence. He shall be released forthwith if his detention is not necessary in connection with any other case. The assistance rendered by Advocate Sri. Thomas J. Anakkallunkal is appreciated. The registry shall give him a copy of this judgment and shall immediately intimate the Superintendent of Central Jail, Kannur about the order of acquittal of the appellant.