30 March 2022 3:45 PM GMT
Madras High Court has commuted the life sentence of three accused including a pastor involved in the acts of kidnapping, marrying and sexually assaulting a Class X Student.Justices P.N Prakash and A. A Nakkiran observed that the conviction of the appellant-accused stand confirmed along with other substantive sentences though the life sentences under POCSO Act can be reduced to a fixed term...
Madras High Court has commuted the life sentence of three accused including a pastor involved in the acts of kidnapping, marrying and sexually assaulting a Class X Student.
Justices P.N Prakash and A. A Nakkiran observed that the conviction of the appellant-accused stand confirmed along with other substantive sentences though the life sentences under POCSO Act can be reduced to a fixed term for each of the accused.
The accused in the case were Vijayakumar (A-1) who married the minor by tying a 'thaali' around her neck after kidnapping her, Pastor Muniyandi (A-2) who solemnized the sham marriage, and Joseph Raja (A-3) who was the accomplice of A1.
During the appeal, the court took note of a particular submission by A2 and A3 that they were unaware of the age of the victim and genuinely believed her to be over 18 years. A2 and A3 submitted that Vijayakumar (A-1) made them believe that she was over 18 years old and the victim herself remained silent when Vijayakumar told both A2 and A3 that she was 18 years old.
The court, however, observed that though the argument appears to be 'a little convincing' at the first blush, the cross-examination of the victim has revealed that she was in a school uniform when taken to the houses of Joseph Raja in Sulur and Pastor Muniyandi in Gudalur.
"....in the cross-examination of "X" (P.W.2), she has clearly stated that she was in school uniform, when she was being taken to the house of Pastor Muniyandi @ Ramesh (A-2) and Joseph Raja (A-3). Therefore, Pastor Muniyandi @ Ramesh (A-2) and Joseph Raja (A-3), who were around 39 and 35 years, respectively, at the time of the incident (as could be seen from their statements under Section 313 Cr.P.C.), cannot be heard to say that they believed "X" (P.W.2) was not a minor."
The court also added that the first reaction of the second and third accused upon seeing a girl in school uniform should have been to inform her parents as responsible citizens. Instead, they chose to entertain the request of Vijayakumar to provide accommodation and perform a 'secretive marriage' in the house of Pastor Muniyandi.
Life imprisonment imposed on Vijayakumar under Section 6 of the POCSO Act [Punishment for aggravated penetrative sexual assault] was reduced to 14 years rigorous imprisonment, without any remission benefits. Life imprisonment imposed on Pastor Muniyandi and Joseph Raja under Section 6 R/w Section 17 of the POCSO Act was reduced to 10 years of rigorous imprisonment. The court also made it clear that the sentences imposed under IPC and Prohibition of Child Marriage Act, along with the sentence of fine and the default clause imposed by the trial Court on all the appellants will remain unaltered.
The case of the prosecution was that the victim was studying in Class X and residing with her grandmother in Ukkaram as the guardian at the time of the incident. Vijayakumar, the prime accused, used to visit his sister, who was a neighbour of the victim, frequently. According to the Prosecution, the prime accused gained sympathy in the mind of the victim by professing his love for her and by revealing that he has been deserted by his wife and two children. He told the minor that he would like her to become his wife and both of the eloped on a motorcycle after school on 23.08.2016 in front of the grandmother who came to fetch her grandchild.
Afterwards, Vijayakumar took her first to Joseph Raja's house at Sulur. Joesph Raja accompanied both of them to Pastor Muniyandi's house. After the marriage, they came back to Sulur and rented out a portion of Joseph Raja's house. According to the victim's statement, they had coitus ever since the kidnapping and they were living as husband and wife. Both Vijayakumar and the minor girl were intercepted by the police at a check post in October 2016. After enquiries, it was known that the victim girl is the same person who was alleged to have been kidnapped by Vijayakumar in the written complaint of the minor girl's grandmother.
Vijayakumar was arrested and the investigating officer filed an alteration report by including the provisions of the Protection of Children from Sexual Offences Act, 2012. The statement under Section 164 Cr.P.C. of "X" was recorded by Judicial Magistrate No.I at Gobichettipalayam. The medical examination of the victim confirmed that she has been subjected to coitus though the vaginal swabs did not indicate the presence of semen.
The age determination test also showed that the age of the victim was above 14 years and below 15 years.
Muniyandi and Joseph Raja were arrested and remanded in 2017.Pastor Muniyandi, Joseph Raja and Vijayakumar were booked for offences under Section 366 of IPC, Sections 9 and 10 of the Prohibition of Child Marriage Act, 2006 and Sections 6 and 17 of the POCSO Act.
Aggrieved by the sentence imposed by the trial court deeming each of them guilty of all the offences in the charge sheet, they approached the High Court.
Though there was a minor error in the birth certificate, the court observed that the victim was studying in Class X according to the School Headmaster and therefore she was a minor.
The court observed that there is no evidence to conclude that the victim was forcibly carried away from the school by the prime accused and she had, in fact, voluntarily gone with him on the motorcycle.
"However, "X" (P.W.2) has stated that Vijayakumar (A1) did tell her that he was a married man with two children, but, has been deserted by his wife and children. Vijayakumar (A-1) has further struck a sympathy cord in the mind of "X" (P.W.2) saying that he is intensely in love with her and wanted to marry her. Would the same, by itself, be sufficient to exonerate Vijayakumar (A-1) from the charges?"
The court noted that the factum of the victim being a minor can't be challenged:
"....satisfactory materials have been placed before us to show that the date of birth of "X" (P.W.2) is 06.04.2002 and even according to the medical evidence, "X" (P.W.2) was between 14 and 15 years at the time of occurrence. Therefore, consent has no relevance at all in this case, but, can at the most be considered as a mitigating factor, while deciding the question of sentence"
On the role of the pastor and Joseph Raja, the court referred to 'abetment; in Section 16 of the POCSO Act and the Explanation II given.
The court noted that the act of the pastor and Jospeh in giving asylum to Vijayakumar and X, the victim, performing their marriage and facilitating coitus will fall within the meaning of abutment under Section 16. explanation to Section 16 states that whoever does anything to facilitate the commission of the act is said to be aiding the act. They will be punishable under Section 17 of the POCSO Act [Punishment for Abetment].
Section 17 of the Act states that whoever abets any offence under the Act, if the act abetted is committed in consequence of the abetment, shall be punished with the punishment provided for that offence.
"That apart, under Section 29 of the POCSO Act, there is a presumption clause, which not only brings in the actual offender but also the abettor and the burden is on the accused to prove the contrary", the bench added.
The court also pointed out Section 30 of the Act which says about the presumption of mens rea that is required to be discharged by the accused.
Since the foundational facts constituting the offences under POCSO Act have already been established by the evidence, the court noted that there is a reverse burden under Sections 29 and 30 of the POCSO Act on the accused that they have failed to discharge satisfactorily.
Therefore, the court concluded that the charges against the accused have been proved beyond a reasonable doubt.
However, the respondent counsels requested for reduction of the sentence on the ground that the minor and the prime accused were in love with each other and went with him on her own volition. She is now apparently married to another person and lives at some other place.
Taking note of this, the court concluded as below:
"Taking into consideration the entire facts and circumstances of the case, the conviction of the appellants under various provisions as set out... is confirmed. As for the sentence, we are of the opinion that interests of justice will be served, if the life imprisonment that has been awarded on the appellants is reduced to fixed terms..."
Case Title: Pastor Muniyandi @ Ramesh & Ors. v. State Represented by Inspector of Police
Case No: Crl.A.Nos.130 of 2018, 190 & 506 of 2019
Citation: 2022 LiveLaw (Mad) 128
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