Madras High Court
K.Muthu Mariappan vs The State Rep By The Inspector Of Police on 12 June, 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12.06.2015 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU CRIMINAL APPEAL (MD).No.98 of 2015 K.Muthu Mariappan : Appellant Vs. The State rep by the Inspector of Police, Arumuganeri Police Station, Tuticorin District. Crime No.64 of 2014 : Respondent PRAYER Appeal is filed under Section 374 of the Code of Criminal Procedure to set aside the order dated 13.03.2015 passed in Special Sessions Case No.11 of 2014, on the file of the learned Sessions Judge, Mahila Court, [Fast Track Court], Tuticorin and allow the Criminal Appeal. !For Appellant : Mr.M.Vijayakumaran ^For Respondent : Mr.C.Mayil Vahana Rajendran Additional Public Prosecutor :JUDGMENT
************* The appellant is the sole accused in S.C.No.11 of 2014, on the file of the learned Sessions Judge, Mahila Court, [Fast Track Court], Tuticorin. He stood charged for the offences punishable under Sections 366(A) of the Indian Penal Code and Section 6 r/w Section 5(l) of the Protection of Children from Sexual Offences Act, 2012, [for brevity, ?the POCSO Act?]. The Trial Court, by Judgment dated 13.03.2015, has convicted the appellant under Section 366(A) of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months. The Trial Court further convicted the appellant under Section 4 of the Protection of Children from Sexual Offences Act, 2012, [for brevity, ?the POCSO Act?] and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months. The sentences have been ordered to run concurrently. As against the said conviction and sentence, the appellant has come up with this Criminal Appeal.
2. The case of the prosecution, in brief, is as follows:-
PW-2 is the daughter of PW-1. They were residing at Kombuthurai in Kayalpattinam. PW-2 was hardly fifteen years old at the time of occurrence. She was studying 11th standard in the Government Girls Higher Secondary School, Kayalpattinam. The accused became acquainted with her during the said period. During the month of December 2013, on account of her ill-health, PW-2 stopped her studies. On 15.02.2014, during night hours, PW-2 had gone to a church situated in the village. The accused met her near the church and expressed his desire to marry her. He also requested her to come on the next day at 06.00 AM to Mudiyappar Temple in the same village. Accordingly, PW-2 went to Mudiyappar Temple. The accused came there and took her in a bus from Kayalpattinam to Tuticorin, from where he took her to Chennai. On 17.12.2014, early in the morning, they reached Chennai. The accused took PW-2 to a rented house, which was in his occupation. He gave promise to her that he would marry her. On that day, the accused attempted to have sexual intercourse with her. But, PW-2 declined to give consent. With a view to get consent from her, the accused told her that since he was surely going to marry her, there was nothing wrong in having sexual intercourse with him. By giving such assurance, the accused had repeated sexual intercourse with her.
2.1. PW-1, on 16.02.2014, on coming to know that PW-2 had not returned from Mudiyappar Temple, went in search of her to so many places. Since she could not locate her, she proceeded to the Arumuganeri Police Station to make a complaint. PW-9, Mr.Subramaniam, received the said complaint from PW-1 at 02.00 PM, on 17.02.2014 and registered a case under the caption "girl missing". EX-P1 is the complaint and EX-P8 is the First Information Report.
He forwarded both these documents to the Court and handed over the case diary to the Inspector of Police for investigation.
2.2. The learned Judicial Magistrate, Tiruchendur, received EX-P1 and EX-P8, at 09.50 AM, on 19.02.2014. PW-10, the then Inspector of Police took up the case for investigation. He examined PW-1, her husband and few more witnesses from the said locality and recorded their statements. Then, he obtained certificate from the Headmaster of the Higher Secondary School, where PW-2 was studying, in order to ascertain the age of PW-2. PW-9 was the then Headmaster of the school and she issued EX-P5, certificate. According to the school records, the date of birth of PW-2 was 16.05.1998. PW-10, thereafter proceeded in search of PW-2. On 19.02.2014, at about 04.00 PM, on an information received by him, he proceeded to the Kayalpattinam Bus Stand, where he found PW-2 along with the accused. He arrested the accused and took PW-2 into his custody. He recorded her statement, from and out of which, he came to know that the accused had repeated sexual intercourse with her, by promising to marry her. Therefore, he altered the case into one under Section 366(A), 376 of the Indian Penal Code and Section 4 of the POCSO Act. EX-P9 is the alteration report. On 19.02.2014, he forwarded the accused to the Court for judicial remand. Then, he forwarded PW-2 for medical examination. PW-6, Dr.Annal Manjula examined PW-2 on 22.02.2014 at 10.30 AM. PW-2 told her that lastly, she experienced menstrual cycle on 21.02.2014 and therefore, vaginal smear could not be taken. On examination, PW-6 found that the hymen was not intact. She further found that her female genitalia was capable of allowing two fingers to move freely. From these findings, PW-6 opined that PW-2 had been subjected to repeated sexual intercourse. EX-P2 is the certificate issued by her.
2.3. Continuing the investigation, PW-10 examined few more witnesses and recorded their statements. Then, he gave a request to the learned Judicial Magistrate to forward the accused for medical examination. Accordingly, the accused was taken to PW-7 for medical examination. PW-7, Dr.C.Manoharn, examined him, on 06.03.2014 and found that all his sexual organs had developed fully. He further found that the accused was capable of performing penile sexual intercourse with a woman. EX-P4 is the certificate issued by him. PW-10 collected the medical records pertaining to PW-2 and the accused, examined the doctors and recorded their statements. On 23.05.2014, he again altered the case into one under Section 366 of the Indian Penal Code and Section 4 of the POCSO Act and forwarded a report to the learned Judicial Magistrate, under EX-P10. On 03.06.2014, he collected the school transfer certificate, EX-P6 and her Higher Secondary Mark Sheet, under EX-P7, to prove her date of birth. Finally, he laid charge sheet on 22.05.2014 alleging that the accused had committed offences punishable under Sections 366 of the Indian Penal Code and 4 of the POCSO Act.
2.4. Based on the above materials, the Trial Court framed charges against the accused under Section 366(A) of the Indian Penal Code and Section 6 r/w Section 5(l) of the POCSO Act. The accused pleaded innocence. In order to prove the case, on the side of the prosecution as many as 10 witnesses were examined and 11 documents were marked. Out of the said witnesses, PW-1, the mother of the victim girl, has spoken about the fact that PW-2 was found missing from 16.02.2014 and her complaint to the police on 17.02.2014. PW-2, the victim girl, has clearly spoken about the fact that she was taken to Chennai by the accused and under the promise of marriage, he had repeated sexual intercourse with her. PW-1 and PW-2 have also spoken about the age of PW-2. PW-3, a resident of the same village, had spoken about the fact that she had seen the accused and PW-2 together on few occasions prior to 16.02.2014, involving themselves in a chat. PW-4 is the fisherman by profession and he also belongs to the same village. He has stated that on 16.02.2014, at about 06.00 AM, he found the accused and PW-2 near the temple together. PW-5 is the native of the same village, but during the relevant period, he was staying in Chennai at Otteri. The accused is his cousin. On 17.02.2014, according to him, the accused and PW-2 came to his house and stayed in his house for one day. The next day, since he came to know that Arumuganeri Police was in search of the accused and PW-2, he sent them back to their native place. PW-6 Dr.Annal Manjula has spoken about the examination conducted on PW-2 and her opinion. PW-7, Dr.C.Manoharan has spoken about the examination conducted by the accused and his opinion. PW-8 is the Headmaster of the Government Higher Secondary School at Kayalpattinam, who has spoken about the date of birth of PW-2. PW-9, the then Inspector of Police has spoken about the registration of the case. PW-10, the then Inspector of Police has spoken about the investigation done by him. 2.5. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against him, he denied the same as false. However, he did not choose to examine any witness nor to exhibit any document. Having considered all the above materials, the Trial Court convicted the appellant under Section 366(A) of the Indian Penal Code and Section 4 of the POCSO Act and punished him accordingly. That is how, the appellant is now before this Court with this Criminal Appeal.
3. I have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully.
4. The learned counsel for the appellant would submit that PW-2, at the time of occurrence, was not a child, as defined in Section 2(d) of the POCSO Act. According to him, she was aged more than 18 years and thus, she was not a child. In order to substantiate this contention, the learned counsel would rely on the evidence of PW-6, who has stated that she was not asked to give any opinion regarding the age of PW-2, by conducting any medical examination. Further, according to him, the competent expert would only be a Radiologist. The learned counsel would further submit that so far as the school certificate is concerned, the person, who furnished the date of birth of PW- 2, at the time when she was admitted in the school for the first time has not been examined. According to the learned counsel, in the absence of the said evidence, the age of PW-2 cannot be determined, on the basis of school certificate issued by PW-8. The learned counsel would further submit that the birth certificate of PW-2 has not been produced. At any rate, according to the learned counsel, since PW-2 was at the verge of attaining majority, she was capable of giving consent for sexual intercourse.
5. The learned counsel would further submit that the sexual intercourse between the appellant and PW-2, even if it is found to be true, would not make out any offence, as it is contended by the prosecution. The learned counsel would further submit that PW-2 had not raised any resistance, when she was taken from her native place to Chennai and also while returning all the way from Chennai to her native place. Thus, according to the learned counsel, PW-2 was a consenting party. The learned counsel would further submit that PW-5 has stated that PW-2 and the accused stayed at Chennai only one day. Even on that day, PW-2 was sleeping inside the house along with the wife of PW-5, whereas the accused was sleeping outside the house along with PW-5 in the veranda. Thus, there would have been no occasion for the accused to have sexual intercourse with PW-2, it is contended.
6. Now, turning to the conviction, the learned counsel would submit that charge framed was under Section 366 of the Indian Penal Code, whereas the conviction was recorded under Section 366(A) of the Indian Penal Code. This is not permissible in law, it is contended. He would further submit that similarly, though the other charge was under Section 5(l) of the POCSO Act, he was convicted under Section 4 of the POSCO Act, which is also not sustainable.
7. Per contra, the learned Additional Public Prosecutor would submit that from the medical records, it has been clearly established that PW-2 was less than 18 years of age as on the date of occurrence. He would further submit that the presumption under Section 29 of the POCSO Act can very much be raised against the accused. Since, in this case, the said presumption has not been rebutted by the accused, the conviction cannot be interfered with. The learned Additional Public Prosecutor would further submit that as per Section 13 of the POCSO Act, the culpable mental state of the accused should be presumed. The accused has not rebutted the said presumption as required in Section 13(1) of the POCSO Act. Thus, according to the learned Additional Public Prosecutor, from the evidence of PW-2, it has been clearly established that the accused had culpable mental state to have sexual intercourse with PW-2 and with that culpable mental state, he has taken her all the way to Chennai and had sexual intercourse with her and brought her back to her native place. So far as the age of PW-2 is concerned, the learned Additional Public Prosecutor would submit that if any question arises in any proceedings before the Special Court, whether a person is a child or not, such question shall be determined by the Special Court and it shall record in writing the reasons for such determination.
8. The learned Additional Public Prosecutor would further submit that once such record is made by the Special Court, it shall not be deemed to be invalid, merely by any subsequent proof that the age of a person as determined by it, shall not be the correct age of such person. Here, in this case, according to the learned Additional Public Prosecutor, the age of PW-2 was determined by the Court and the same was not challenged and thus, the same has become final. The learned Additional Public Prosecutor would further submit that though it is true that the charge framed was under Section 366 of the Indian Penal Code and he was convicted under Section 366(A) of the Indian Penal Code, the same has not caused any prejudice or miscarriage of justice. Similarly, though the accused was charged under Section 6 r/w 5(l) of the POCSO Act and he was convicted under Section 4 of the POSCO Act, it has not caused either prejudice or miscarriage of justice to the accused. Thus, according to the learned Additional Public Prosecutor, the conviction and sentence imposed by the Trial Court does not warrant any interference at the hands of this Court.
9. I have considered the above submissions.
10. Admittedly, PW-1, in her evidence, stated that prior to 15.02.2014, PW-2 was closely moving with the accused. When this came to light, her parents stopped her from going to school. She was also reprimanded by her parents. It is her further evidence that on 15.02.2014, the accused met PW-2 in the temple and told her that she would marry her. As agreed upon, she went to Mudiyappar Temple, on 16.02.2014, early in the morning at 06.00 'O' Clock, without informing her family members. Then, on meeting the accused at the said temple, she went along with him to Tuticorin by bus from where she went to Chennai, without any hesitation. When they were at Chennai also, she did not make any resistance, except saying that she was not agreeable for sexual intercourse. When they came back to Kayalpattinam from Chennai, she did not raise any alarm. All these facts would clearly go to show that PW-2 went along with the accused on her own volition and with consent.
11. Now, the question is as to whether the act of the accused in taking PW-2 will amount to kidnapping. One of the essential ingredients of the offence of kidnapping is that the victim should not have attained the age of 18 years. Similarly, in order to attract any offence under the provisions of the POCSO Act, it should be proved by the prosecution that as on the date of the commission of the crime, she was a child. The term ?child" has been defined in Section 2(d) of the Act, which states that child means, any person below the age of 18 years. Thus, for the purpose of the offence of kidnapping as well as for any offence under the POCSO Act, the age of PW-2 should be proved to be below 18 years as on the crucial date.
12. It is the contention of the learned counsel for the appellant that the prosecution has failed to prove that PW-2 was below the age of 18 years as on the date of occurrence. But, it is the contention of the learned Additional Public Prosecutor that PW-2 was below the age of 18 years as on the date of the commission of the offence, which is evident from EX-P5 to EX- P7. According to the said documents, the date of birth of PW-2 was 16.05.1998, which means, as on the date of the commission of the offence, PW- 2 had not completed the age of 18 years.
13. The contention of the learned counsel for the appellant is that in the absence of the examination of the person, who gave such information to the school, where PW-2 was admitted in respect of her date of birth and in the absence of birth certificate, the date of birth of PW-2 shall not be taken as proved as 16.05.1998. It is true that the primary evidence to prove the date of birth of the individual may be preferably the birth certificate. But, it cannot be said that in the absence of the birth certificate, the date of birth cannot be proved. It can be proved by other means. However, when the age of the individual is not disputed, the question of proving the same does not arise at all. It is the settled law that a fact in issue or any relevant fact, or any fact relevant to the issue, which is disputed by the adverse party alone needs proof. If it is not disputed, there is no need to lead any evidence in proof of the said admitted fact. In this case, PW-2 has stated, in chief examination, that her date of birth is 16.05.1998. But, during the cross-examination, the same has not been disputed at all. Thus, the evidence of PW-1 in respect of the age of PW-2 remains unchallenged. The certificates, viz., EX-P5 to EX-P7, are public documents, which contain the date of birth of PW-2. Assuming that these documents do not have substantive value for want of examination of the person, who gave the information regarding the date of birth to the school at the time when PW-2 was admitted, even then, these documents will not lose their value at least as corroborative piece of evidence and they would duly corroborate the evidence of PW-2 to prove her date of birth. Apart from the above, PW-1 is the one, who gave the information to the school authorities about the date of birth of PW-2, when she was admitted in the school. PW-1 has stated that the birth of PW-2 was duly recorded by the local panchayat authority. Only on producing the birth certificate, PW-1 claims that she admitted PW-2 in the school. This fact also has not been denied by the accused. Thus, the argument of the learned counsel for the appellant that the person, who gave the information to the school authorities, at the time when PW-2 was admitted, has not been examined, is factually incorrect. It is PW-1, who gave such information to the school authorities. She had also denied the suggestion made to her that she admitted PW-2 at the age of seven. Thus, the evidence of PW-1 also clearly goes to support the prosecution to prove the age of PW-2.
14. From the above evidences, the Trial Court has held that as on the date of the commission of the crime, PW-2 had not completed the age of 18 years. In the said conclusion arrived at by the Trial Court, I do not find any infirmity warranting interference at the hands of this Court. I fully concur with the said finding of the Trial Court that as on the date of the commission of the offence, PW-2 had not completed the age of 18 years.
15. PW-2, in her evidence, has stated that it was only this accused, who took her from the village to Chennai and then brought her back to Kayalpattinam. The evidences of PW-3 to PW-5 also corroborate the same. It is the positive case of the accused himself that he only took PW-2 to Chennai and brought her back. The accused offered some explanation that he had no mens rea to commit any crime. According to him, since PW-2 threatened the accused that she would commit suicide, unless he took her elsewhere, he was forced to take her for her protection. This explanation cannot be accepted. Had it been true that PW-2 had so threatened the accused, he would have certainly informed the same to some one either directly or over phone, but he did not do so. Further, according to the evidence of PW-2, they had already planned to elope. All these evidences would go to show that the accused had taken PW-2 from and out of the lawful guardianship of PW-1. Thus, in my considered opinion, the accused has committed the offence of kidnapping, as defined in Section 361 of the Indian Penal Code.
16. Regarding the culpable mental state of the accused, as pointed out earlier, it is the contention of the learned counsel that the accused, in good faith, took PW-2 to Chennai and brought her back, as she threatened to commit suicide. In this regard, I may refer to Section 30 of the POSCO Act, which reads as follows:-
"30. Presumption of culpable mental state.- (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.
(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".
17. In the instant case, in view of the other proved facts that the accused alone took PW-2 to Chennai and had sexual intercourse with her, the culpable mental state is to be presumed. But, the accused has not rebutted the said presumption. Therefore, I hold that he had culpable mental state while taking PW-2 from her village to Chennai only for the purpose of committing sexual assault. That apart, the presumption of guilt under Section 29 of the Act also needs to be raised, as all the necessary fundamental facts have been proved. The said presumption also has not been rebutted by the accused.
18. Now, coming to the conviction, the appellant has been convicted under Section 366(A) of the Indian Penal Code, which reads as follows:-
"366-A. Procuration of minor girl- whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten year, and shall also be liable to fine".
19. It is the contention of the learned counsel for the appellant that the offence under Section 366(A) of the Indian Penal Code would be made out, if only the accused had kidnapped her with an intention to force or seduce her to have illicit intercourse with another person. In other words, the kidnapping of a minor girl from and out of her lawful guardianship to force or seduce her to have sexual intercourse with himself would not make out an offence under Section 366(A) of the Indian Penal Code. I am persuaded by the said argument of the learned counsel for the appellant. A plain reading of Section 366(A) of the Indian Penal Code would make it clear that the person kidnapping and the person with whom a minor girl is forced or seduced to have sexual intercourse should be two different persons. Therefore, the conviction of the appellant under Section 366(A) of the Indian Penal Code is not sustainable and instead, he is liable to be punished only under Section 363 of the Indian Penal Code.
20. Now, turning to the conviction under Section 4 of the POCSO Act, the learned counsel for the appellant would submit that there was no charge framed under Section 4 of the POCSO Act and instead, the charge framed against the accused was only under Section 5(l) r/w Section 6 of the Act, which, according to him, is illegal. Let me first decide as to whether the act of the accused in having sexual intercourse with PW-2 would fall under Section 4 or Section 5(l) r/w Section 6 of the Act. The term ?penetrative sexual assault? has been defined in Section 2(f) of the POCSO Act, which states as follows:-
?penetrative sexual assault has the same meaning as assigned to it in Section 3?.
Section 3 of the POCSO Act reads as follows:-
"3. Penetrative sexual assault - A person is said to commit "penetrative sexual assault" if -
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part off the body of the child so as to cause penetration into the vagina, urethra, anus or any part of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."
Section 2(a) of the POCSO Act, defines aggravated penetrative sexual assault, which reads as follows:-
"aggravated penetrative sexual assault" has the same meaning as assigned to it in Section 5."
Section 5(l) of the POCSO Act reads as follows:-
?whoever commits penetrative sexual assault on the child more than once or repeatedly is said to commit aggravated sexual assault".
21. In the case on hand, from the evidence of PW-2, it has been clearly proved that the accused had repeated sexual penile intercourse with PW-2, which squarely falls within the definition of aggravated sexual assault. But, the learned counsel for the appellant would submit that PW-5 has stated that on 17.02.2014, the accused and PW-2 came to his house at Chennai and stayed there for one day. During night hours, according to him, PW-2 along with the wife of PW-5 slept inside the house, whereas the accused slept along with PW- 5 outside the house in the verandah. The learned counsel would, therefore, submit that the evidence of PW-2 that they had sexual intercourse at the house of PW-5 cannot be true.
22. It may be true that PW-2 was sleeping inside the house and the accused slept outside the house along with PW-5 in the verandah. But, it cannot be ruled out that they would have found occasion, without the knowledge of PW-5 and his wife, to have sexual intercourse. Therefore, this argument deserves only rejection. Apart from the above, the medical evidence clearly shows that PW-2 had been subjected to sexual intercourse, which is evident from the absence of hymen. Thus, I said that the prosecution has proved that the accused had sexual intercourse with PW-2, repeatedly. Thus, I hold that the accused has committed an offence of aggravated penetrative sexual assault, as defined in Section 6 r/w Section 5(l) of the POCSO Act. The Trial Court has, however, not convicted the accused under Section 5(l) of the POCSO Act and instead, the Trial Court has convicted the appellant under Section 4 of the POCSO Act.
23. As we have already seen, Section 4 of the POCSO Act deals with penetrative sexual assault, whereas Section 5(l) of the POCSO Act deals with aggravated penetrative sexual assault. Though the Lower Court ought to have convicted the accused under Section 6 r/w Section 5(l) of the POCSO Act, in the absence of any appeal by the State, this Court cannot convert the conviction of the accused into one under Section 6 r/w Section 5(l) of the POCSO Act.
24. The learned Additional Public Prosecutor would submit that as per Section 4 of the POCSO Act, which deals with penetrative sexual assault, it is a minor offence to that of aggravated penetrative sexual assault, which is a major offence and therefore, it is not illegal to convict the accused under the said provision. In this regard, I may refer to Section 222 of the Code of Criminal Procedure, which reads as follows:-
"222. When offence proved included in offence charged-(1) 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.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3). When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4). Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied."
25. Interestingly, the term ?minor offence? has not been defined in the code. It is too well settled that one of the tests to decide whether a particular offence is a minor offence to the other offence for the purpose of Section 222 of the Code of Criminal Procedure is the quantum of punishment prescribed under the said provisions. Apart from the above, both the offences should be cognate offences. The term minor offence has to be interpreted in its ordinary sense and not in technical sense. The test based on the particulars prescribed is one test, but not the only test. Though the punishment for both the offences is the same, if one offence is made out of certain particulars, whereas the other is made out of few additional particulars, then, the former shall be construed as a minor offence, provided the punishment prescribed for the same is not more than the punishment for the other offence. It is common knowledge that the major offence is the one, which is made out of more particulars, which includes a minor offence, which is made out of only some of the said particulars. The offence, which is made out of more particulars, shall be construed as a major offence, whereas the offence, which is made out of some of those particulars, is a minor offence, de hors the fact that the punishment provided is one and the same. In this regard, I may refer to the Judgment of the Hon'ble Supreme Court in Shamnsaheb M.Multtani Vs. State of Karnataka, reported in AIR 2001 921, wherein in Paragraph Nos.14 to 16, it is held as follows:-
"14. Sections 221 and 222 of the Code are the two provisions dealing with the power of a criminal court to convict the accused of an offence which is not included in the charge. The primary condition for application of Section 221 of the Code is that the court should have felt doubt, at the time of framing the charge, as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of acts alleged against the accused. In such a case the section permits to convict the accused of the offence which he is shown to have committed though he was not charged with it. But in the nature of the acts alleged by the prosecution in this case there was absolutely no scope for any doubt regarding the offence under Section 302 IPC, at least at the time of framing the charge.
15. Section 222(1) of the Code deals with a case ?when a person is charged with an offence consisting of several particulars?. The section permits the court to convict the accused ?of the minor offence, though he was not charged with it?. Sub-section (2) deals with a similar, but slightly different situation.
?222. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.?
16. What is meant by ?a minor offence? for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis--vis the other offence".
26. From the above Judgment, it is crystal clear that to find as to whether a particular offence is a minor offence to the other offence in question, what is required or essential is that both the offences should be cognate offences, where the main ingredients are common and the one punishable among them with a lesser sentence can be regarded as a minor offence.
27. The Rajasthan High Court in Anil Kumar Vs. State of Rajasthan, reported in 1992 Crl.LJ 3637, while dealing with an identical issue, in Paragraph No.13 held as follows:-
"13. The term, "minor offence" has to be interpreted in its ordinary sense and not technical sense. The test is not the gravity of punishment. When a person is charged with an offence, consisting of several particulars, and if all the particulars are proved, then it will constitute the main offence, while if only some of those particulars are proved and their combination constitutes a minor offence, the accused can be convicted of the minor offence, though he was not charged with it. Thus, a minor offence within the meaning of S.222, Cr.Pc., would not be something independent of the main offence or an offence merely involving lesser punishment. The minor offence should be composed of some of the ingredients constituting the main offence and be a part of it. In other words, the minor offence should essentially be a cognate offence of the major offence and not entirely a distinct and different offence, constituted by altogether different ingredients".
28. From the above Judgments, it is crystal clear that both the offences should be cognate offences and the offence, which is made out of some of the ingredients constituting the main offence and be a part of of it, is a minor offence.
29. In the case on hand, in the matter of aggravated penetrative sexual assault, it should be proved that there was repeated penetrative sexual assault. Thus, the aggravated penetrative sexual assault, which is made out of several particulars, includes a mere penetrative sexual assault, which is made out of some of those particulars. Therefore, there can be no difficulty in holding that the Sections 4 and 6 r/w Section 5(l) of the POCSO Act are cognate offences and Section 4 of the POCSO Act is a minor offence to Section 6 r/w Section 5(l) of the POCSO Act.
30. Now, let us look into the punishment as provided under these penal provisions. Though the maximum punishment awardable under Section 4 as well as Section 6 is imprisonment for life with fine, the minimum punishment provided in Section 4 of the POCSO Act is imprisonment of either description for a term which shall not be less than seven years, whereas the minimum punishment provided under Section 6 of the POCSO Act is rigorous imprisonment for a term which shall not be less than ten years. The term "imprisonment" under Section 4 of the POCSO Act may be of either description, viz., either rigorous or simple, whereas under Section 6 of the POCSO Act, the term imprisonment shall be only rigorous. From these ingredients, it can be noted that in the matter of punishment also, Section 4 of the POCSO Act is minor to Section 6 of the POCSO Act.
31. In view of the above, I hold that the conviction of the appellant under Section 4 of the POCSO Act, though the appellant stood charged under Section 6 r/w Section 5(l) of the POCSO Act and there was no charge under Section 4 of the POSCO Act, it is not illegal and so the same is liable to be confirmed. Thus, I find no reason to interfere with the conviction and sentence imposed under Section 4 of the POCSO Act.
32. Now, turning to the question of sentence, it is the settled law that while deciding the quantum of punishment, it is required that the Court should strike a balance between the aggravating circumstances and the mitigating circumstances. The aggravating circumstances relate to the crime and the mitigating circumstances relate the criminal. In this case, so far as the aggravating circumstances are concerned, a minor girl was kidnapped and she was sexually exploited. The wound caused to the girl is not only to the body, but also to the mind of not only the victim, but that of the entire family members. The stigma, which she is going to carry for ever, is not erasable. Thus, the aggravating circumstances are so grave in nature.
33. Now, turning to the mitigating circumstances, the accused was hardly aged about 23 years at the time of occurrence. It is not brought to the notice of this Court that after the occurrence, the first accused has committed any other offence. There is likelihood of his reformation. But, the statue under Section 4 of the POCSO Act prescribes a minimum punishment for a term of seven years with fine. When the intention of the Legislature is to impose stringent punishment for not less than seven years, this Court has got no option, except to impose the minimum punishment of seven years. For the offence under Section 366 of the Indian Penal Code, there is no minimum punishment prescribed. Therefore, for the said offence, having regard to the mitigating and aggravating circumstances, he can be sentenced to undergo rigorous imprisonment for one year with a fine of Rs.1,000/- in default to undergo rigorous imprisonment for one month. For the offence under Section 4 of the POCSO Act, the Trial Court has imposed rigorous imprisonment for ten years and has imposed fine of Rs.1,000/-. In my considered view, the same needs to be reduced to rigorous imprisonment for seven years and fine of Rs.1,000/- in default to undergo rigorous imprisonment for one month.
34. In the result, the Criminal Appeal is party allowed in the following terms:-
(i). The conviction of the appellant under Section 366(A) of the Indian Penal Code is set aside and instead, he is convicted under Section 363 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for one month.
(ii). The conviction of the appellant under Section 4 of the Protection of Children from Sexual Offences Act 2012, is confirmed. However, the sentence is reduced to rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for one month.
(iii). It is directed that the said sentences shall run concurrently and the period of sentence already undergone by the appellant shall be set off under Section 428 of the Code of Criminal Procedure.
12.06.2015 Index : Yes/No Internet : Yes/No NB To
1.The Sessions Judge, Mahila Court, [Fast Track Court], Tuticorin.
2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
S.NAGAMUTHU, J.
NB PRE-DELIVERY JUDGMENT MADE IN CRIMINAL APPEAL (MD).No.98 of 2015 12.06.2015