Kerala High Court
Rizwan Rana vs State Of Kerala on 8 September, 2015
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
TUESDAY,THE 3RD DAY OF NOVEMBER 2015/12TH KARTHIKA, 1937
CRL.A.No. 898 of 2015
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AGAINST THE JUDGMENT IN SC 901/2014 of D.C. & SESSIONS COURT,KOZHIKODE
DATED 08-09-2015
CRIME NO.503/2014 OF KUMBLA POLICE STATION, KASARAGOD
APPELLANT/ACCUSED :-
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RIZWAN RANA, AGED 20 YEARS,
S/O.GULSHAR @ LILLAKHAN, RESIDING AT HOUSE NO.303,
AMBETHARINDAR VILLAGE, GADIPUKTHA,
SHAMILY DISTRICT,UTHARPRADESH.
BY ADV. SRI.KODOTH SREEDHARAN
RESPONDENTS/COMPLAINANT :-
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STATE OF KERALA,
REPRESENTED BY THE SHO, KUMBALA,
THROUGH THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM-682 031.
R BY SMT. MADHUBEN, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-11-2015,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rkj
P.UBAID, J.
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Crl.Appeal No.898 of 2015
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Dated this the 3rd day of November, 2015
ORDER
The appellant herein faced prosecution before the Court of Session, Kasaragod (Special Court for the trial of offences against women and children) on a charge under Section 376 (1) IPC, and under Section 5 read with Section 6 of the Protection of Children from Sexual Offences (POCSO)Act, on the allegation that at about 1.30 p.m. on 02.10.2014 he sexually assaulted a small minor girl aged 12 years at her residence, and also subjected her to sexual intercourse, when he happened to visit the said house as part of his business as a trader of textile goods. The accused pleaded not guilty to the charge framed by the trial court, and claimed to be tried. The prosecution examined twelve witnesses including the victim of offence, and also proved the Ext.P1 to Ext.P13 documents. MO1 to MO3 properties Crl.Appeal No.898 of 2015 2 were also identified and marked during trial. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and projected a defence of total denial. On an appreciation of the evidence, the learned trial Judge found the accused not guilty under Section 376(1) IPC, and also under Section 6 of the POCSO Act. However, he was found guilty of having committed the lesser offence defined under Section 7 of the POCSO Act, and was accordingly convicted under Section 8 of the POCSO Act. On conviction he was sentenced to undergo simple imprisonment for three years, and to pay a fine amount of Rs.25,000/- under Section 8 of the POCSO Act, by judgment dated 8.9.2015. Aggrieved by the judgment of conviction, the accused has come up in appeal.
2. When this appeal came up for hearing, the learned counsel for the appellant submitted that the conviction in this case without any corroborative evidence is illegal, that the victim of offence has not properly identified the accused during trial, and that when there is a finding of not guilty against him under Section 376 IPC, and also under Section 6 Crl.Appeal No.898 of 2015 3 of the POCSO Act as alleged in the Court charge, a conviction under Section 8 of the POCSO Act is not possible under the law, in view of the bar under Section 222(4) Cr.P.C.
3. On facts, regarding the evidence given by the victim of offence, much arguments were not made by the learned counsel. However, let me see whether the evidence given by the victim as PW1 is convincing and acceptable. The victim was aged only 12 years on the date of the alleged incident. She has given definite and convincing evidence that when she was alone at her house, the accused came there for the sale of textile goods, and he asked for a glass of water. When she brought water, the accused caught hold of her right hand and forcibly embraced her. She somehow wriggled out, escaped from the accused, and ran to the adjacent house. This is the evidence given by the victim in examination in chief. As regards the offence of rape alleged by the prosecution also the victim gave evidence, but the said evidence was not accepted by the trial court. So let me confine the discussion to the factual aspects concerning the sexual assault alleged by the prosecution. As rightly found Crl.Appeal No.898 of 2015 4 by the trial court, the offence under Section 376 IPC stands not proved in this case by satisfactory and believable evidence. But on an appreciation of the evidence given by the victim as PW1, I find that the offence of sexual assault as defined under Section 7 of the POCSO Act stands well proved.
4. On an appreciation of the evidence given by the victim, I find that she was sexually assaulted by the accused. Sexual assault is defined under Section 7 of the POCSO Act, that whoever, with sexual intent, touches the vagina, penis, anus or breast of a child, or makes a 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, is said to commit sexual assault. Section 8 of the POCSO Act prescribes the punishment for the offence defined under Section 7. The offence proved in this case comes under the second part of Section 7 of the POCSO Act, constituting any act done with sexual intent, involving physical contact. The victim of offence has given clear evidence that she was caught hold of and embraced by the Crl.Appeal No.898 of 2015 5 accused with sexual intent. This will very well come under Section 7 of the POCSO Act, punishable under Section 8.
5. One aspect argued by the defence is that the accused was not properly identified by the victim. On an examination of the evidence given by the victim, I find that the person who molested her was well identified by the victim during trial. She identified the accused in the dock. As regards identification of the accused, the position stands well settled by the Honourable Supreme Court. The argument made by the learned counsel is that test identification parade was not conducted in this case to identify the accused. It stands well settled that if the victim had sufficient time; to have the face and physical features of the assailant imprinted in her mind, identification of the assailant or accused made by the victim in Court cannot be assailed on the ground that test identification parade was not conducted. In this case, I am well satisfied that the victim had well seen, and identified the accused when he came at her residence. The victim had enough time to have the face and physical features of the accused imprinted in her mind. I Crl.Appeal No.898 of 2015 6 find that the assailant stands well identified by the victim in this case.
6. Now let me come to the legal aspect argued by the appellant. The learned counsel argued vehemently that when the finding on a charge under Section 6 of the POCSO Act is in favour of the accused, a conviction for the lesser offence punishable under Section 8 of the POCSO Act is not possible, in view of the bar contained in Section 222(4) of the Code of Criminal Procedure.
7. Sub Section (1) of Section 222 Cr.P.C. provides that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. The prosecution relies on Sub Section (1) to sustain the conviction in this case under Section 8 of the POCSO Act, that though the major offence is not proved by the prosecution, a lesser offence, meant under section 222 (1) Cr.P.C., stands proved, and so there is nothing illegal in Crl.Appeal No.898 of 2015 7 the conviction made by the trial court. Sub Section(4) of Section 222 Cr.P.C. provides that nothing in Section 222 shall be deemed to authorise a conviction for any minor offence where the conditions required for the initiation of proceeding in respect of that minor offence have not been satisfied. The purport of Sub Section (4) is very clear. Sub Section (1) authorises conviction for a minor offence or a lessor offence, when the major offence is not proved. But, Sub Section (4) contains a prohibition that if initiation of proceedings for the minor offence requires some procedural formalities, or some conditions, there cannot be a conviction for such lesser offence, when such requisite conditions are not complied with. For example, if a prosecution where the minor offence proved requires prosecution sanction, there cannot be a conviction for the minor offence under Section 222(1) Cr.P.C., when there is no such prosecution sanction. So also, when the minor offence found by the Court is one regarding which cognizance is not possible otherwise than on complaint, a conviction for the said minor offence is not possible under Section 222(1) Cr.P.C. Thus, the purport of Sub Section (4) is Crl.Appeal No.898 of 2015 8 very clear that a conviction for a minor offence as authorised under Section 222(1) is not possible in cases where initiation of proceeding for such minor offence requires some conditions precedent. Here, the major offence alleged by the prosecution is punishable under Section 6 of the POCSO Act, and the minor offence found by the trial court is punishable under Section 8 of the POCSO Act as a case of mere sexual assault defined under Section 7 of POCSO Act.
8. It is true that the Court charge is under Section 6 of the POCSO Act. The minor offence, or the lesser offence, meant under Section 222(1) Cr.P.C. is offence of the same nature but lesser in degree and gravity. No doubt, the offence of mere sexual assault defined under Section 7 of the POCSO Act is lesser in gravity and degree to the offence of penetrative sexual assault defined under Section 5. The offence defined under Section 11 of the POCSO Act, and made punishable under Section 12 is again lesser in gravity. Thus, on an examination of the scheme of the various provisions of the Protection of Children from Sexual Offence Act it can be seen that various types of offence are defined, Crl.Appeal No.898 of 2015 9 and one is made lesser to the other in gravity. On an examination of the various provisions including Sections 7 and 8 of the POCSO Act, I find that the offence defined under Section 7 is definitely lesser in degree and gravity than the offence of aggravated penetrative sexual assault defined under Section 5 and made punishable under Section 6 of the POCSO Act.
9. As observed and found earlier, the only purport of Sub Section (4) of Section 222 Cr.P.C. is that when initiation of proceedings or prosecution for the lesser offence found by the trial court requires compliance of certain pre-requisite conditions, the Court cannot enter a finding of guilty and make a conviction for the said lesser offence, if those pre- requisite conditions are not complied with. Initiation of prosecution for the offence of sexual assault punishable under Section 8 of the POCSO Act does not involve any such pre-requisite conditions. As regards the offences punishable under the POCSO Act cognizance by the Special Court directly on complaint, or on a police report, is authorised under Section 33 of the Act. Sub Section (1) of Section 33 Crl.Appeal No.898 of 2015 10 provides that the Special Court may take cognizance of any offence without the accused being committed to it upon a complaint of facts which constitute such offence, or upon a police report of such facts.
10. The learned counsel for the appellant relies on the decision of the Madhya Pradesh High Court (Division Bench) in Murlidhar Agarwal v. State of Madhya Pradesh [2011 Crl.Journal 3478] under Section 222(4) Cr.P.C. That is a case where the lesser offence found by the trial court requires some pre-requisite conditions including a definite complaint for cognizance. As regards the lesser offence found by the trial court in the said case, the Madhya Pradesh High Court found that such a prosecution is possible only on a complaint, and not on police report, and so a conviction for the said lesser offence is bad in view of the Section 222(4) Cr.P.C. There is no such situation here. Cognizance can be taken by the Court of Session, or the Special Court either on police report or on complaint, directly, under Section 6 or under Section 8. Initiation of prosecution under Section 8 of the POCSO Act does not require any pre-requisite condition. Crl.Appeal No.898 of 2015 11 I find no substance in the arguments made by the learned counsel on this legal aspect.
11. As already found, the lesser offence punishable under Section 8 of the POCSO Act stands proved in this case, though the offence of rape, or the offence defined under Section 5 of the POCSO Act is not proved. I find that the accused was rightly convicted by the trial court under Section 8 of the POCSO Act, as authorised under Section 222 (1)Cr.P.C. On facts, a clear case of sexual assault defined under Section 7 of the POCSO Act stands well proved by the evidence of the victim. I find no ground or reason to interfere in the findings made by the trial court, or the conviction made by the trial court. This appeal is liable to be dismissed as meritless.
In the result, this Court is reasoned to dismiss this appeal as merit less.
Sd/-
P.UBAID JUDGE rkj //TRUE COPY// P.A. TO JUDGE IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 13TH DAY OF OCTOBER 2015/21ST ASWINA, 1937 CRL.A.No. 1500 of 2011 ( )
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AGAINST THE ORDER IN CC NO.719/2008 of J.M.F.C.-II, KOCHI-5 DATED 30.11.2009 AGAINST THE ORDER IN Crl.L.P. 577/2011 of HIGH COURT OF KERALA DATED 15.07.2011 APPELLANT(S)/COMPLAINANT:
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T.K. SHAKEER HUSSAIN, AGED 42 YEARS, S/O.T.K.KUNJU MUHAMMED, VII/1163, MEPARAMBU HOUSE, KAPPALANDI MUKKU, KOCHI - 682 002.
BY ADV. SRI.V.M.KURIAN RESPONDENT(S)/ACCUSED & STATE:
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1. MR.BEJOY M.K., S/O. KAMALASANAN, MOOMTHUNKAL HOUSE, KANICHUKULANGARA.P.O, CHERTHALA ALAPPUZHA DISTRICT - 688 544.
2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM - 682 031.
R1 BY ADV. SRI.G.SUBRAMANIAN R2 BY PUBLIC PROSECUTOR SMT.M.G.LISHA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A.No. 1500 of 2011 ( )
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APPENDIX PETITIONER'S EXHIBITS TRUE COPY OF THE ORDER DATED 30/11/2009 IN C.C NO. 719/2008 PASSED BY JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOCHI RESPONDENTS'S EXHIBITS : NIL /TRUE COPY/ P. A. TO JUDGE Pn SUNIL THOMAS, J.
------------------------------------------- Crl. Appeal No. 1500 of 2011
------------------------------------------- Dated this the 13th day of October, 2015 J U D G M E N T The complainant in C.C. No.719/2008, who instituted a complaint on an allegation that, the accused issued a cheque for a sum of 5,00,000/- towards the discharge of a legally recoverable debt which got dishonoured, challenges the order dated 30.11.2009, by which the complaint was dismissed and the accused was acquitted invoking Section 256 of the Cr.P.C.
2. According to the complainant, after the institution of the complaint, summons was issued to the accused and ultimately he appeared. Thereafter, there were several postings, on which dates he was present personally or effectively represented through his counsel. Ultimately, the matter was posted to 30.11.2009, on which day, neither the complainant nor the counsel was present. Consequently, the complaint was dismissed.
3. Heard both sides and examined the records.
4. The reason stated by the appellant for the absence is that, the case which was posted originally to 30.09.2009 was Crl. Appeal No. 1500 of 2011 2 adjourned to 17.11.2009, but by a mistake it was wrongly taken down by the Clerk as 27.01.2010. The appellant claims that, on 27.01.2010, he was present along with his counsel and found that the case was not called. On enquiry, it was revealed that, the case stood posted to 17.11.2009 and on that day, since there was no representation it was adjourned to 24.11.2009; on that day also, there was no representation and ultimately the case was adjourned to 30.11.2009. The learned counsel for the respondent who opposed the prayer contended that, the impugned order itself indicates that the Court below has given sufficient opportunity to the complainant, inspite of he remaining absent continuously.
5. The only question that arises is whether the contention of the appellant that his Clerk wrongly took the date as 17.11.2009 is to be believed or not. The certified copy of the impugned order itself indicates that, it was applied for on 02.02.2010. This tallies with his case that the posting date was wrongly taken as 27.01.2010. Further, the learned counsel for the appellant submitted that, the accused appeared after repeated summons and after issuing warrant. It appears that, the complaint was filed in 2008 and was dismissed on 30.11.2009, Crl. Appeal No. 1500 of 2011 3 indicating that atleast for a period of 2 years he has been prosecuting the matter diligently. The cheque amount is 5,00,000/-. In the above circumstance, there is nothing to presume that the complainant is likely to knowingly remain absent and invite an adverse order.
6. Though legally the Court below was perfectly justified in passing the order, considering the above facts, I feel that, one more opportunity can be granted to the complainant to adduce evidence, in the interest of justice. Hence, the impugned order is liable to be set aside,.
In the result, the appeal is allowed. The impugned order is set aside and the matter is remanded to the Court below for a fresh consideration for enabling the complainant to prosecute the matter. Both sides shall appear before the Court below on 03.12.2015. On that day, the complainant shall be present in person and offer himself for adducing evidence. The Court below shall regulate its proceeding, in accordance with law, thereafter.
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SUNIL THOMAS, JUDGE.
Pn