23 Sep 2021 2:54 PM GMT
While hearing a criminal appeal preferred by a priest accused of sexually assaulting a young girl, the Kerala High Court on Thursday voiced its concern over the pitiful fate of women abandoned by their husbands, particularly of the helpless children."When a man abandons his wife and children, roving vultures wait to prey on not only the abandoned woman, but also the helpless children. In...
While hearing a criminal appeal preferred by a priest accused of sexually assaulting a young girl, the Kerala High Court on Thursday voiced its concern over the pitiful fate of women abandoned by their husbands, particularly of the helpless children.
"When a man abandons his wife and children, roving vultures wait to prey on not only the abandoned woman, but also the helpless children. In this case we have a 'poojari'/'komaram' (priest/oracle in a temple) taking the abandoned woman and the three children under his wing, only to repeatedly molest the elder girl child, that too in the presence of her siblings. We wonder which God would accept the obeisance and offerings of such a priest or make him a medium?"
The observations came in a matter where a temple pujari had taken an abandoned woman and her three children under his wing, only to repeatedly molest the elder girl child, that too in the presence of her siblings.
The incident came to light after the children were found wandering around the streets, shepherded by an almost insane mother. Child-line personnel immediately reported them to the nearest Vanitha Cell, and they were picked up at once.
On enquiry, it was revealed that the woman showed signs of acute mental illness and displayed violent tendencies. Therefore, she was taken to a Mental Health Centre along with the youngest child.
This is when the child revealed that the appellant-accused had sexually molested her for one year. She was taken to the Police right away and a crime was registered against the appellant.
In her statement, the victim spoke of the repeated acts committed on her in graphic detail- the instances of the accused knocking on the door, entering inside, stifling her with a cloth pushed into her mouth, tearing off her clothes and raping her while her two younger siblings cowered in fear at the corner of the room.
She also pointed out that although she complained of the same to her mother, she was asked to suffer, since the accused always came home drunk.
The school-going child also revealed that the accused had threatened to kill her if she divulged what she is subjected to.
Her younger brother who was a witness to the crime spoke in tandem with the evidence provided by the prosecutrix.
Advocate KM Firoz for the appellant took the Court through the charge to point out that there is a misjoinder of charges.
He argued that the POCSO Act was brought into effect from 14.11.2012 and that the incident on which the first charge is levelled was prior to the POCSO Act and therefore requires a committal proceeding under the Cr.P.C.
The appellant submitted that he was subjected to great prejudice due to the same.
Further, the age of the victim was not proved by the prosecution under the POCSO Act.
The Court found that the ground of absence of committal proceedings as against the offence alleged cannot be sustained. It observed,
"when the offences, which arise from the very same act, are tried together and the age of the victim is not proved, it is not as if the offence under the IPC charged against the accused would fall to the ground since no committal proceedings have been carried out under the Cr.P.C."
The Court added,
"When taking cognizance of a charge under the POCSO Act, the designated Special Court is empowered to try any offence, charged at the same trial. Otherwise, every trial under the POCSO Act will have to wait till the committal proceeding is over and that would defeat the very purpose of the enactment which envisages speedy disposal of the cases. It cannot also be the position that once the age is not proved, the offence under Section 376 would fail for reason of no committal proceedings having been taken under the Cr.P.C.
The POCSO Act enables such other offences to be tried without committal proceedings if it is to be tried in the same trial. The grounds of prejudice urged fails also for the reason that it is merely imaginary. We reject it at the outset on the above reasoning and also on the appellant having merely 'cried foul' without the particular prejudice caused or the specific failure of justice, having been stated or substantiated."
The bench also asserted that the charge was explicit and was of continued sexual assault of the penetrative kind on the victim by the accused, who was in the status of her guardian.
"Mere irregularity in charge does not prejudice the accused so long as he was aware of what was expected to be defended."
Additionally, the Court noted that the medical evidence clearly evidenced that the victim had been subjected to sexual acts.
Moreover, it was found that the accused had made a total denial of even the joint residence with the mother and children under Section 313. However, the deposition of the house owners specifically established that fact.
"This deliberate falsehood stated by the accused under Section 313, points to his complicity and reveals the guilty mind. The accused said that he does not know the mother of the prosecutrix while there was overwhelming evidence as to the accused residing with the mother and children and his own child, as a family. "
The Court found this to be an additional circumstance against the accused.
In its order, the Bench has also empathised with the mother of the victim.
"The mental state of the mother, a shame on society, is quite understandable from the stress of having been abandoned, with three children and no means of food or shelter; for which alone the children were subjected to physical, mental and sexual torture. No mother can remain sane in the said circumstances."
Finally, the Court partly allowed the appeal by setting aside the appellant's conviction under the POCSO Act and Section 376(2) IPC, as the victim's age was not proved.
However, since the offence of rape was proved, the accused was convicted under Section 376(1).
Considering the special relationship the accused had with the victim and the status of a guardian, the Court imposed on the appellant the maximum sentence of life imprisonment.
Case Title: Madhu v. State of Kerala & Ors.
Click Here To Read The Order