Madras High Court
Rajkumar vs State Through on 6 January, 2023
2023/MHC/67
Crl. A(MD)No.106 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 06.01.2023
CORAM:
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
AND
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl. A(MD)No.106 of 2021
Rajkumar : Appellant
Vs.
State through
The Inspector of Police,
Vadamadurai Police Station,
Dindigul District.
(In Crime No.479 of 2017) : Respondent
PRAYER: Criminal Appeal is filed under Section 374 (2) of the Code of
Criminal Procedure, to call for the entire records connected with the
judgment rendered by the Sessions Judge, Fast Track Mahila Court,
Dindigul, in Special S.C.No.60 of 2018, dated 22.08.2019 and set aside the
same and consequently acquit the appellant.
1/42
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For Appellant : Mr.R.L.Dhilipan Pandian
for D.Rajaboopathy
For Respondent : Mr.S.Ravi
Additional Public Prosecutor
JUDGMENT
P.N.PRAKASH,J.
AND
DR.G.JAYACHANDRAN, J.
This appeal is preferred by the convict, who was tried as an
adult and sentenced to undergo life imprisonment though he was juvenile at
the time of alleged occurrence.
2. The case of the prosecution is that on 14.12.2017 at about
10.00 a.m., 4 years old girl child while walking along with her maternal
grand-mother Kumarakkal along the Komberipatti to Semanampatti road,
the appellant who was a juvenile at that point of time followed them and
had offerred lift to them in his two-wheeler bearing registration No.TN-57-
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AV-1765. He has taken them in his two-wheeler upto the house of
Kumarakkal. He told her that he will drop the minor girl at Balwadi but
taken her to the graveyard near a hill and committed aggravated sexual
assault. When the 4 years old child resisted and tried to raise an alarm, he
closed her mouth, smothered and caused her death. Kumarakkal, who later
went to Balwadi to bring home the child, was informed the child did not
come to Balwadi. Suspecting foul play, she went in search of the child,
meanwhile Thiru.Jeyakannan the father of the child returned to the village
after visiting the temple at Melmaruvathur. He along with other villagers
joined the search. On the information given by some of the villagers, they
zeroed down, the spot where the minor girl was seen alive along with the
appellant they went searched near the Ciyakani Hill and found the child
partly buried under a heap of stones gravels, her leg exposed. The body was
exhumed. Complaint was given to the respondent police by the father of the
victim, they registered the written complaint Ex.P1 and commenced the
investigation. On the next day, i.e., on 15.12.2017 the accused Rajkumar
was arrested and after being ascertaining his age and prima facie
satisfaction that he is juvenile, he was sent to the Juvenile Home at Salem.
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3. On completion of investigation, Final Report was filed in
the Sessions Judge, Fast Track Mahila Court, Dindigul. The learned
Sessions Judge after furnishing the copies of the document relied by the
prosecution framed the charges under Sections 363, 302, 379, 201 IPC and
Section 5(m) r/w 6 of POCSO Act, 2012. The accused denied the charges
and claimed to be tried.
4. Accordingly, to prove the charges, the prosecution has
examined 39 witnesses, marked 30 Exhibits and 6 Material Objects.
Incriminating evidence against the accused was put to accused under
Section 313 Cr.P.C., and opportunity was given to him to marshal evidence
on his behalf. Though the accused denied the evidence as false he has not
examined any witness. No document marked on the side of the defence.
5. The trial Court, on appreciating the evidence, held the
accused guilty of charges under Sections 363, 302, 379, 201 of IPC and
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Section 5(m) r/w 6 of POCSO Act, 2012, has convicted and sentenced the
accused as under:
Offence under Conviction and Sentence
Section
302 IPC To undergo Rigorous imprisonment for
life and to pay a fine of Rs.5,000/-, in
default, to undergo simple
imprisonment for six months
363 IPC To undergo 4 years Rigorous
imprisonment and to pay a fine of
Rs.2,000/-, in default, to undergo
simple imprisonment for three months
379 IPC To undergo 2 years Rigorous
Imprisonment and to pay a fine of Rs.
500/-, in default, to undergo simple
imprisonment for one month.
201 IPC To undergo 2 years Rigorous
Imprisonment and to pay a fine of Rs.
500/-, in default, to undergo simple
imprisonment for one month.
5(m) r/w 6 of To undergo 10 years Rigorous
POCSO Act Imprisonment and to pay a fine of Rs.
5000/-, in default, to undergo simple
imprisonment for six months.
The trial Court ordered, the sentences shall run concurrently.
6. Aggrieved by the above conviction and sentence, the present
appeal has been filed.
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7. The prosecution case as unravelled through the witnesses
runs as below:-
(i) P.W.1 [Jeyakannan] father of the victim girl child is the first
informant and his complaint is marked as Ex.P1. According to him, on his
return from Melmaruvathur, was told his daughter is missing from morning
and he searched the entire village and enquired the persons, who had the
likelihood of seeing his daughter. He was informed by the villagers that his
daughter was taken by a boy in a two-wheeler, later he came to know his
name as Rajkumar. Based on their lead, body of the child was found in the
burial ground near Ciyakkani Hill. Hence he went to the police station and
lodged the complaint. Ex.P1 complaint was received by P.W.29
[Muralidharan], the Inspector of Police, Vadamadurai Police Station on
14.12.2017 at about 16.30 hours.
(ii) P.W.2 [Kumarakkal] is the maternal grandmother of the
minor child, who had stated that she along with minor girl was taken by the
accused in his two-wheeler, while they were walking along with
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Komberipatti road and returning home after purchase of kerosene from the
ration shop. She has identified the accused as the one who dropped her at
her house at Sriramapuram and took her grand daughter promising to drop
her at Balwadi. After 1 ½ hours she went to Balwadi to bring his grand-
daughter back, there they told her that her grand-daughter did not come to
Balwadi. Thereafter, she started searching the child. Her son-in-law (P.W.1)
along with some of the villagers went to nearby hamlets like Mammanur,
Valavichettipatti. The residence of Valavichettipatti informed them that they
saw a boy taking a child with him towards Kinathupatti. At Kinathupatti
they got lead that the boy and the child went towards Ciyankani Hill.
(iii) P.W.3 [Chinnammal] cattle grazer at Chenkanathupatti
deposed that about 1 ½ years ago while she was grazing the cattle in the
forenoon at the foot of Ciyankani Hill she heard sound of small child cry
and sound of dropping stones, but she did not suspect anything, so returned
to her house. Again when she went back to the foot of hill for grazing cattle
at 03.00 p.m., found lot of villagers searching. When she enquired them,
they told her that a child is missing and somebody has kidnapped her. Then
she informed them about hearing of weeping noise of a small child and
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showed them the direction from where she heard the noise. The searchers
went there and later she came to know that at the foot of the hill, a child was
killed and covered with stones.
(iv) P.W.4 (Chinnu) belongs to Kalathupatti village a year ago
during the month of Tamil Markazhi, 2017 while he and his villagers were
proceeding to the chandy about 50 persons came from West and enquired
them about a small child. At that time, one among them by name Murugan
informed them that he saw a boy taking a child towards East. They all
joined together and went in search of the girl and found a heap of stones
near grave yard at Ciyankani Hill and the portion of leg protruding. When
they all jointly cleared the stones, they found a dead child naked with
bleeding injuries over the body.
(v) P.W.5 (Karuppasamy) Tea shop owner at Thangamapatti
Village had deposed that about a year before the deposition, he saw a boy
taking a small child in a TVS vehicle. The child was weeping and the boy
stopped and purchased biscuit from his shop and gave it to the child. The
boy also asked milk and gave to the child. On that day, at about 4.30 p.m.,
to 05.00 p.m., he heard that a child was found dead near foot of Ciyankani
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Hill. He along with villagers went there and saw a girl child dead with
several injuries over her body. He has identified the girl as one who came
along with the accused to his shop on that day morning.
(vi) P.W.6 (Rajalakshmi) is the wife of P.W.5. She has deposed
corroborating the evidence of her husband examined as P.W.5.
(vii) P.W.7 (Murugan) resident of Kalathupatti village had
deposed that a year ago at about 11.00 a.m., while he was engaged in
spraying pesticide in the field. He saw a boy taking a small child in his
TVS-50. After sometime, a group of people came in search of a child and
enquired him. He informed to them he saw earlier a child and a boy going in
a TVS-50 vehicle. Later the body of the child was found at East of
Kalathupatti near the graveyard.
(viii) P.W.8 (Palanivel) turned hostile.
(ix) P.W.9 (Rajammal) had deposed that while she was grazing
the cattle near Ciyankani Hill, she saw the accused weeping at his grand-
mother's grave and saw a green colour two-wheeler near him. On her
return to the home, she saw a group of people searching for the child and to
them, she informed that she saw a boy with a child and he was weeping near
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a grave yard.
(x) P.W.10 (Kannan) is a grocery shop owner. The accused is
known to him. He has deposed that on 14.12.2017 when he was at
Sriramapuram he saw the accused in a TVS-50 along with child proceeding
towards North. Since he know about the antecedent of the boy Rajkumar,
suspecting something cynical, he noted the vehicle number. Sometime later,
P.W.1 and others came to his shop and told him that the daughter of P.W.1 is
missing, immediately, he gave the two-wheeler number which he has
already noted and informed them about the accused.
(xi) P.W.11 (Sivakami) is the mother of the victim child. One
day before the incident she has gone to Melmaruvathur temple. He came to
know about the missing of her daughter and her death, subsequently on her
arrival to Ayyalur.
(xii) P.W.12 (Ramesh) is the relatives of P.W.1 and P.W.11. He
is one of the members of the group, which went in search of the minor child
after noticing her absense.
(xiii) P.W.13 (Chinniah) has turned hostile and not supported
the case of prosecution.
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(xiv) P.W.14 (Karuppaiah) is yet another villager, who had gone
in search of the missing girl and found her under the heap of stones.
(xv) P.W.15 (Vadivel) is a resident of Sriramapuram. He had
deposed that Kumarakkal (P.W.2) one day at 02.00 p.m., came crying and
informed him that a boy claiming himself as sister-in-law's son of Chinraj
took her and the minor child in his vehicle and dropped her at the village
and took the child promising that he will drop the child at Balwadi. When
she went to Balwadi they told that the child did not came to Balwadi on that
day. Therefore, he informed the same to Jeyakannan (P.W.1) father of the
minor child and they all jointly went in search of the child. They later found
the child buried under the heap of stones her leg projecting out.
(xvi) P.W.16 (Alagar) has deposed that he is running a
mechanic shop and the accused is known to him. About 1 ½ years ago the
accused came to his shop with TVS-XL vehicle and informed that vehicle
chain is severed and asked him to rectify it. He left the vehicle and went,
but did not return till the police came along with him on the next day. He
saw the accused took the silver anklets from the pouch of the vehicle and
handing it over to the police.
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(xvii) P.W.17 (Vadivazhagu) is the owner of the two-wheeler
TVS-XL bearing registration No.TN-57 AV-1765. The vehicle which was
parked out side his vehicle was missing from the night of 13.12.2017. After
searching for his vehicle for 2 days he gave complaint to the police.
Thereafter, police called him for enquiry and showed the vehicle. The
vehicle was purchased by P.W.17 from P.W.18 and the same fact has been
elucitated through P.W.18.
(xviii) P.W.19 (Sakthivel) is the ambulance driver, who shifted
the body from the foot of Ciyankani Hill and handed over the body to the
Dindigul Government Hospital mortuary for postmortem.
(xix) P.W.20 (Vadivel) is the witness to the mahazar marked as
Ex.P4 for the recovery of dress materials of the child found near the foot of
Ciyankani Hill.
(xx) P.W.21 (Ponraj) a Farmer of Komberipatti village is
witness to the rough sketch prepared by the Investigating Officer and
Observation Mahazar marked as Ex.P5.
(xxi) P.W.22 (Dr.Munusamy) is the doctor who conducted
autopsy and given a report along with his opinion which is marked as Ex.P6
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and Ex.P7.
(xxii) P.W.23 (Krishnamoorthy) is the jewel appraiser, who
appraised the value of the pair of Silver anklet worn by the victim child and
recovered by the police from TVS-XL pouch based on the information given
by the accused.
(xxiii) P.W.24 (Muthukumar) Village Administrative Officer is
witness to the confession statement given by the accused. The recovery
based on the information given by the accused was reduced into writing.
The mahazar Ex.P9 in which P.W.24 has signed as one of the witnesses.
(xxiv) P.W.25 (Dr.Malini) doctor at Government Hospital,
Dindigul who saw the deceased child while admitted into the hospital and
issued the Accident Register Ex.P10.
(xxv) P.W.26 (Vellaidurai) Head Constable carried the copy of
the express FIR and submitted it to the Judicial Magistrate, Dindigul at 3.00
p.m., on 14.12.2017.
(xxvi) P.W.27 (Rajasekar) Inspector of Police, who registered
the FIR and arrested the accused had deposed about his role in the
investigation.
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(xxvii) P.W.28 (Dr.Rathanbabu) who has conducted the potency
test of the accused has opined the accused cannot be an impotent. His report
is marked as Ex.P11. He reports normal early morning errection.
(xxviii) P.W.29 (Muralidharan) Inspector of Police, who
registered the complaint Ex.P1 and forward the same to his superior officer
for further course of action and the same was marked Ex.P12 has deposed
about his role as stated above.
(xxix) P.W.30 (Ayyavoo) the photographer who taken the
photos of the dress and cheppal which belongs to the minor child had
identified it and the same was marked as Ex.P21. The CD file marked as
Ex.P22. The two-wheeler and the anklet were photographed and marked as
Ex.P23. The CD file marked as Ex.P24.
(xxx) P.W.31 (Vijayendran) is the Scientific Officer attached to
Madurai Regional Forensic Science Laboratory. The serology report and
biological reports given by him identified and marked as Ex.P.13 and
Ex.P14.
(xxxi) P.W.32 (Pheulamary) Investigating Officer, who
conducted investigation and recorded the statement of witnesses had
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prepared an inquest report and the same was marked as Ex.P15.
(xxxii) P.W.33 (Dr.Rajasundari) doctor, is the Psychiatrist
attached to Rajaji Hospital, Madurai. On the request of the Judicial
Magistrate, the accused was examined and his health certificate issued by
P.W.33 was marked as Ex.P16 and Ex.P17.
(xxxiii) P.W.34 (Dr. Sureshkumar) is another doctor attached to
Rajaji Hospital, Madurai. He treated the accused from 20.08.2018 to
30.08.2018 as Inpatient and his IQ been assessed as 94. He has opined that
the accused does not suffer from very serious mental illness there was sign
of behaviour deficiency and the report has been marked Ex.P18.
(xxxiv) P.W.35 (Dr.Mahalakshmi) is the doctor, who examined
the accused Rajkumar and she has reiterated the opinion given by P.W.34
regarding the behaviour deficiency of the accused. However, the
assessment of the accused IQ differ from the assessment of P.W.35. Her
certificate was marked as Ex.P19.
(xxxv) P.W.36 (Shyamala) District Child Protection Officer had
deposed that during her visit to the Juvenile Justice Board she counselled
the accused and submitted her report and the said report marked as Ex.P20.
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(xxxvi) P.W.37 (Anitha Imaculate) Head Constable has deposed
about the receipt of the body after the postmortem and handing it over to the
relatives.
(xxxvii) P.W.38 (Sivakumar) Inspector of Police deposed about
the accused, his earlier conviction by the Juvenile Justice Board in
Vadamadurai Police Cr.No.481 of 2017. The judgment of conviction and
sentence, dated 17.05.2018 was marked as Ex.P26.
(xxxviii) P.W.39 (Sivakumar) Deputy Superintendent of Police
is the Investigating Officer and filed the Final Report. He has spoken about
the recovery of material objects under Ex.P13.
8. The trial Court on appreciating the evidence held that the
prosecution has proved the guilt of the accused through P.W.2, who had
travelled with the accused along with the child in his TVS-XL when the
accused offerred lift to them. She has deposed that she allowed the victim
to go along with the accused since he promised her to drop the victim child
at Balwadi. P.W.3 the cattle grazer heard the cry of small child and on her
lead the villagers went and saw a heap of stones and leg of the child
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protruding out. The tea shop owner P.W.5 and his wife P.W.6, who saw the
accused and the child together in the TVS-XL and incriminating
circumstantial evidence which has been believed by the trial Court to hold
the accused guilty of the charges.
9. The TVS-XL two-wheeler marked as M.O.6 been identified
by the witnesses, who saw the accused taking the child in the TVS-XL, later
the accused has left the two-wheeler with P.W.16 complaining about certain
repair, but he did not turn back to take the vehicle till the police came and
seized it. The silver anklet has been recovered from the pouch in the two-
wheeler based on the confession of the accused. The presence of silver
anklet in the pouch is the fact exclusive to the knowledge of the accused.
The anklet identified as that of the victim girl by the prosecution witness
P.W.1 the father of the victim girl. He has identified the anklet and got it
back on petition from the Court. The confession statement given by the
accused to the Village Administrative Officer leading to the recovery
considered by the trial Court for holding the accused guilty.
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10. The learned counsel appearing for the Appellant/accused
contended that the appellant was a minor aged around 16 years at the time
of occurrence. He ought not to have been tried as an adult. Even otherwise,
if he deserves to be tried as an adult, the procedure followed by the Court
below to treat him as adult for the purpose of trial is not in consonance with
the Act and Rules framed thereunder. Since there is a grave violation of the
procedure contemplated to try a juvenile in conflict with law as adult and
imposition of life sentence on the convict who is admittedly juvenile is
contrary to the provisions of Sections 15 and 21 of Juvenile Justice (Care
and Protection of Children) Act, 2015 (herein after referred to as JJ Act,
2015) which specifically prohibits the Courts to impose punishment of
death or Life Imprisonment for a juvenile in conflict with law.
11. Apart from the legal infirmity in the trial, the learned
counsel submit there are errors in appreciation of evidence. According to the
learned counsel for the appellant though prosecution has examined about 39
witnesses, there is no witness to say that they saw the accused committing
the alleged offence. There is no eye witnesses to the occurrence. The entire
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prosecution case pegged on circumstantial evidence. When there are two
witnesses to the confession statement, the prosecution has examined only
one witness and conveniently ommitted to examine the other witnesses to
the confession statement given by the accused. The evidences of P.Ws.2, 5
& 6 will not fall within the scope of last seen alive together theory.
12. The learned Additional Public Prosecutor appearing for the
respondent per contra would submit that P.W.2 Kumarakkal is the person
who handed over the child to the accused believing that he will drop the
child at Balwadi. When P.W.2 later went to Balwadi to collect the victim
girl child, she came to know that the accused has not brought the child to
Balwadi. She got panic and informed P.W.1 the father of the victim child
and the other villagers. The evidences of P.Ws.1,3,5 & 6 all go to show that
the child was with the accused soon before a dead body found at the
graveyard near foot hill. The accused had deceitfully taken the child from
the custody of P.W.2 and had committed the grave offence of aggravated
penetrative sexual assault and murder is established through these
witnessess and substantially corroborated by the recovery of M.O.1 and
M.O.6 based on the confession.
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13. Relying upon the judgment of the Supreme Court rendered
in State of West Bengal vs. Mir Mohammad Omar and others reported in
(2000) 8 SCC 382, the learned Additional Public Prosecutor submitted that
the circumstantial evidence and the fact the accused and the deceased were
found together moving towards foot hill in a TVS-XL vehicle and later the
accused alone was seen, but the child found dead foot hill sufficient to hold
his guilty of murder. Regarding the allegation of violation of Section 15 of
JJ Act, 2015, and the accused being tried as an adult, the learned Additional
Public Prosecutor submitted that the antecedents of the accused have been
properly dealt with as per the procedure laid under the Act for trial of
juvenile as adult the accused acquiescence to be tried as an adult after his
appeal to the Children's Court not considered favourable. Therefore he
cannot plead violation of Section 15 of JJ Act, 2015 when there is no
violation. Therefore submitted that the evidence let in by the prosecution
proves the chain of event regarding the child last seen alive with the
accused and the accused has left his two-wheeler used for kidnapping the
girl with P.W.16. In the said context, the confession statement disclosing
the facts which were in exclusive knowledge of the accused and leading to
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discovery of vehicle and the silver anklet been properly appreciated by the
trial Court for holding the accused guilty. He therefore plead that the
judgment of the trial Court has to be confirmed.
14. In the course of argument, the counsel for the appellant
also submitted that as per Section 21 of JJ Act 2015, no Court can impose
punishment of death or imprisonment of life without any possibility of
release. However the trial Court has imposed life sentence for offence under
Section 302 IPC which is per se contrary to law and manifestation of non
application of mind by the trial Court.
15. At this juncture, it is pertinent to note that earlier when the
matter was taken up for consideration, this Court while about to pass order
had found certain violations and recorded its view that unless some solution
is formulated for the issues surface it will not be in the interest of justice to
dispose of the Criminal Appeal and to enable the Court to formulate some
guidelines whenever the child in conflict with law is tried as an adult, the
matter was adjourned and the oral order passed on 26.10.2022 was recalled.
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Status report from the Director General of Prisons and Correctional Services
was called. Pursuant to the order dated 01.11.2022 status report has been
filed by the Director General of Prisons and Correctional Services as well as
the Joint Director of Social Defence. Pursuant to the directions reports filed
official of Social defence were present and produced records relevant in this
case for proper and complete adjudication.
16. Section 21 of JJ Act, 2015 reads as below:-
“ Order that may not be passed against a child in
conflict with law.—No child in conflict with law shall be
sentenced to death or for life imprisonment without the
possibility of release, for any such offence, either under the
provisions of this Act or under the provisions of the Indian
Penal Code (45 of 1860) or any other law for the time being in
force.”
17. The plain reading of this Section clearly indicates that the
bar is only to impose the life imprisonment without the possibility of release
and it is not a complete or total bar for a Court to impose life imprisonment
if there is possibility of release. If sentence of life is imposed with
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possibility of release either premature or on completion of 14 years of
imprisonment, such imposition of sentence will not fall within the bar under
Section 21 of the JJ Act, 2015.
18. Regarding the duty caused upon the Juvenile Justice Act,
2015 under Section 15 to assess the mental and physical capacity of the
child in conflict with law, it is to be noted that in this case, the prosecution
has relied upon Exs.P16, 17 & 18 which are the Observation Reports of the
doctors who examined the accused on the requisition of the Court before
commencement of the trial. Particularly, Ex.P17, which has clarified earlier
Observation Report on answering the question raised by the Court would
clearly show that the accused had the mental capacity to commit the offence
and had ability to understand the consequences of the offence.
19. Ex.P18 and Ex.P19 would show that he has an Average
Intellectual Capacity and has features of deviated personality traits. Ex.P20
is the counselling report, wherein, the District Child Welfare Officer has
submitted a detailed report about the accused. Therefore, from the above,
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we are satisfied that Juvenile Justice Board has conducted a thorough
enquiry under Section 15 of the JJ Act, 2015, by availing the services of
Experts in the field as envisaged by the proviso to Section 15(1) of the JJ
Act, 2015 and hence, we find no infirmity in the decision of the Juvenile
Justice Board that the appellant in this case should be tried as an adult. As
regards, the appeal under Section 101 of the JJ Act, 2015, it was contended
that the Appellate Court (Children's Court) had not complied with the
mandates of Section 101(2) of the JJ Act, 2015. We called for the records
and found that the Appellate Court (Children's Court) had also requisitioned
the service of the Experts, Psychiatrist and Medical Experts, for determining
as to whether the appellant should be tried as an adult. The only procedural
error that was done by the Appellate Court (Children's Court) was that, it
did not give a positive finding that the appellant should be tried as an adult
and had instead, decided to conduct the trial against the appellant by
deciding to keep the matter open. Incidentally, in this case, the Appellate
Court under Section 101 of the JJ Act, 2015, turned out to be the trial Court
and therefore, the Presiding Officer decided to give a finding in this regard,
in the final judgment itself. The appellant also acquiescenced to this
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procedure and participated in the trial by engaging a counsel and cross-
examined all the witnesses effectively. In other words, by conducting the
trial against the appellant as an adult, the Children's Court has impliedly
negatived his request to be tried as a juvenile. Therefore, this failure of
Appellate Court (Children's Court) under Section 101 of the JJ Act, 2015 to
give a conclusive finding that the appellant should be treated as an adult
cannot by itself vitiate the entire trial, when, it is shown that no prejudice
was caused to the appellant.
20. Regarding the procedure to be followed in a case of
conducting the trial of juvenile in conflict with law, the Hon'ble Supreme
Court recently in its judgment Barun Chandra Thakur vs. Master Bholu
and another reported in 2022 SCC Online SC 870 dealing with proviso to
Section 15(1) which requires preliminary assessment by the JJ Board to treat
a juvenile above aged 16 as an adult has concluded as below:-
81. We are conscious of the fact that the power to make
the preliminary assessment is vested in the Board and also the
Children's Court under sections 15 and 19 respectively. The
Children's Court, on its own, upon a matter being referred to
under section 18(3), would still examine whether the child is
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to be tried as an adult or not, and if it would come to the
conclusion that the child was not to be tried as an adult then it
would itself conduct an inquiry as a Board and pass
appropriate orders under section 18. Thus, the power to carry
out the preliminary assessment rests with the Board and the
Children's Court. This Court cannot delve upon the exercise of
preliminary assessment. This Court will only examine as to
whether the preliminary assessment has been carried out as
required under law or not. Even the High Court, exercising
revisionary power under section 102, would test the decision
of the Board or the Children's Court with respect to its legality
or propriety only. In the present case, the High Court has,
after considering limited material on record, arrived at a
conclusion that the matter required reconsideration and for
which, it has remanded the matter to the Board with further
directions to take additional evidence and also to afford
adequate opportunity to the child before taking a fresh
decision.
The Hon'ble Supreme Court further stated that the task of preliminary
assessment under section 15 of the Act, 2015 is a delicate task with
requirement of expertise and has its own implications as regards trial of the
case. In this view of the matter, it appears expedient that appropriate and
specific guidelines in this regard are put in place. Without much elaboration,
we leave it open for the Central Government and the National Commission
for Protection of Child Rights and the State Commission for Protection of
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Child Rights to consider issuing guidelines or directions in this regard
which may assist and facilitate the Board in making the preliminary
assessment under section 15 of the Act, 2015.
21. In the light of the above observation made in the judgment
of the Hon'ble Supreme Court of India and on the perusal of the records in
the instant case, we find that the JJ Board has opined that the appellant has
to be tried as an adult and given a finding to that effect based on the medical
report. This order which is appealable under Section 101 of the JJ Act,
2015, been rightly exploited by the appellant and has preferred an appeal to
the Children's Court. However, as pointed out by the Division Bench earlier
in its order, dated 01.11.2022, the Children's Court while passing its order,
dated 22.11.2018 dismissing the appeal and had postponed the decision of
determining the mental and physical capacity of the appellant to be decided
at the time of trial. No doubt, such an inconclusive conclusion could have
been avoided by the Appellate Authority while exercising the power under
Section 101 of JJ Act, 2015, but that has not prejudiced the accused.
Contrarily it has given him further opportunity to sustain his appeal. From
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the records we find the accused has not availed the given opportunity by
placing materials during trial to substantiate that why he should not be
treated as an adult.
22. Also it is pertinent to point at this juncture that though the
Appellate Authority has postponed the decision of deciding the mental and
physical capacity of the appellant to be decided at the time of trial, the
appellant herein has not thought fit to challenges the order by filing the
Revision Petition before the High Court. He has accepted the same and has
participated in the trial.
23. Therefore, when material like Exs.P16 to 20 available to
show that the accused/appellant mentally and physically capable of
defending himself and has rightly defended through his counsel, it is not in
the interest of justice to set back the clock and put the accused as well as the
prosecution to conduct re-trial after ascertaining the mental and physical
capacity of the accused.
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24. This Court concious of the fact that the occurrence took
place on 14.12.2017. After a lapse of 5 years and after the juvenile in
conflict with law has attained majority, if the matter remitted back for
ascertaining the mental and physical capacity of the accused as on the date
of committing the crime will be a farce and meaningless exercise.
25. Further, the material already available on record and
marked as exhibits and put to the witnesses as incriminating evidence, not
been impeached though opportunity to tests those documents and discredit
provided to the accused. He had exploited the right by cross-examining the
witnesses who had deposed about Exs.P16 to P20. Though some variation
in the rating of IQ seen in the assessment made by two doctors, the exhibits
marked as Exs.P16 to P20, no where indicates that the appellant is mentally
not fit to face the trial or his mental condition will fall under the exception
under Section 84 of IPC. As far as the instant case is concerned since the
appellant has not challenged the dismissal of his appeal by the Children's
Court regarding treating him as an adult, the issue has to put at rest. The
accused has participated in the trial accepting the judgment of the Children's
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Court on his appeal given with an opportunity to canvass the right in the
trial.
26. Therefore, it is necessary to meet the ends of justice to
proceed with the appeal based on the grounds of appeal and the evidence
available to decide whether the finding of the trial Court holding the
accused guilty of charges under Sections 363, 302, 379, 201 IPC and
Section 5(m) r/w 6 of POCSO Act, 2012 is to be interfered or not.
27. As far as charge under Section 363 IPC is concerned, this
Court finds that the evidence of P.W.2 Kumarakkal is singularly sufficient to
hold that the accused has committed the offence under Section 363 of IPC.
This witness has clearly stated that she and the 4 years old minor girl went
for purchasing kerosene and on returning home, the accused came in TVS-
XL vehicle and offerred lift, they both get into the vehicle. She was
dropped near her house. The accused promised that he will drop the child
at Balwadi, P.W.2 has allowed the accused to take the minor child. This part
of P.W.2 evidence stands unimpeached. The alleged ommission and
addition found in her deposition contrary to the previous statement not been
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confronted when the Investigating Officer who recorded the previous
statement was cross-examined. Further, apart from P.W.2, this Court finds
the Tea shop owners P.W.5 and P.W.6 husband and wife have spoken about
the fact that the minor girl was weeping and she was under the custody of
the accused. After P.W.2 entrusted the child to the accused, the accused and
minor child were been alive by P.Ws.5, 6, 9 & 10, thereafter, the accused
alone has come back and seen by P.W.16, the mechanic to whom the
accused has made a request to mend his TVS-XL and left the vehicle and
key to him and went away. This has happened at 03.30 p.m., on that day.
The vehicle belongs to P.W.17 and the same was stolen from his house a day
prior to the occurrence. The RC of this vehicle stands in the name of
Karuppasamy, who was examined as P.W.18, he has deposed that the vehicle
was sold to P.W.17 for a sum of Rs.19,000/- and P.W.17 has not yet
transferred the vehicle in his name.
28. From the evidence of P.Ws.16, 17 and 18 the vehicle
bearing registration No.TN-57-AV 1765 stands in the name of P.W.18, but
sold to P.W.17, which was stolen 15 days prior to the occurrence and the
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same was found in possession of the accused by the witnesses examined by
the prosecution and it had been handed over to P.W.16 by the accused to
mend the cut in the Chain Sprocket.
29. In this connection the evidence of P.W.10 also gain
significance. He is one of the witnesses seen the accused taking a 4 years
old in his TVS-XL. This witness know about the bad antecedents of the
accused and being surprise and shock to see him taking a child in a two-
wheeler, he has taken note of the registration number of the vehicle. This
has occurred on 14.12.2017 at about 10.00 a.m., later in the day at about
02.00 p.m., group of people from Semmanampatti had come to Komberipatti
in search of the child. To them he has given the vehicle number and detail
about the accused. His evidence cannot be just like ignore as afterthought
implanted by the prosecution, because in the complaint marked as Ex.P1,
dated 14.12.2017 came to be registered at 16.30 hours, the name of the
accused and the two-wheeler number is mentioned. The accused though was
juvenile been a notorious and known for his notoriocity in and around the
village. This is spoken by the prosecution witness in the course of trial and
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the District Child Protection Officer report Ex.P20 speaks volume about the
antecedents of the appellant.
30. In the case of State of West Bengal vs. Mir Mohammad
Omar and others reported in (2000) 8 SCC 382, the Hon'ble Supreme Court
had an occassion to analyse the evidenciary value of last seen theory and
application of Section 106 of the Evidence Act. The said observation is
extracted below since anology to the facts of the instant case can be drawn
profitable.
“35. During arguments we put a question to
learned Senior Counsel for the respondents based on a
hypothetical illustration. If a boy is kidnapped from the lawful
custody of his guardian in the sight of his people and the
kidnappers disappeared with the prey, what would be the
normal inference if the mangled dead body of the boy is
recovered within a couple of hours from elsewhere. The query
was made whether upon proof of the above facts an inference
could be drawn that the kidnappers would have killed the boy.
Learned Senior Counsel finally conceded that in such a case
the inference is reasonably certain that the boy was killed by
the kidnappers unless they explain otherwise.
36. In this context we may profitably utilise the legal
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principle embodied in Section 106 of the Evidence Act which
reads as follows: “When any fact is especially within the
knowledge of any person, the burden of proving that fact is
upon him.”
37. The section is not intended to relieve the prosecution
of its burden to prove the guilt of the accused beyond
reasonable doubt. But the section would apply to cases where
the prosecution has succeeded in proving facts from which a
reasonable inference can be drawn regarding the existence of
certain other facts, unless the accused by virtue of his special
knowledge regarding such facts, failed to offer any
explanation which might drive the court to draw a different
inference.
38. Vivian Bose, J., had observed that Section 106 of the
Evidence Act is designed to meet certain exceptional cases in
which it would be impossible for the prosecution to establish
certain facts which are particularly within the knowledge of
the accused. In Shambhu Nath Mehra v. State of Ajmer [AIR
1956 SC 404 : 1956 SCR 199 : 1956 Cri LJ 794] the learned
Judge has stated the legal principle thus:
'' This lays down the general rule that in a criminal case
the burden of proof is on the prosecution and Section 106 is
certainly not intended to relieve it of that duty. On the
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contrary, it is designed to meet certain exceptional cases in
which it would be impossible, or at any rate disproportionately
difficult for the prosecution to establish facts which are
‘especially’ within the knowledge of the accused and which he
could prove without difficulty or inconvenience.
The word ‘especially’ stresses that. It means facts that
are pre-eminently or exceptionally within his knowledge.''
39. In the present case, the facts which the prosecution
proved including the proclaimed intention of the accused,
when considered in the light of the proximity of time within
which the victim sustained fatal injuries and the proximity of
the place within which the dead body was found are enough to
draw an inference that victim's death was caused by the same
abductors. If any deviation from the aforesaid course would
have been factually correct only the abductors would know
about it, because such deviation would have been especially
within their knowledge. As they refused to state such facts, the
inference would stand undisturbed.''
31. The material evidence available before this Court for
consideration are:-
(i) the evidence for prosecution through the P.W.2 about
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permitting the accused to take the child in his TVS-XL expecting that he
will drop the child at Balwadi.
(ii) P.Ws.5, 6 & 10 had seen the accused taking the child in his
TVS-50 towards the Ciyankani Hill.
(iii) P.W.9 the cattle grazer had seen the accused and the green
colour vehicle near grave yard.
(iv) P.W.16 has deposed that the accused came with the TVS-
XL vehicle and asked him to mend the broken chain sprocket.
32. From these evidences, it is clear that the accused and the
child were seen together alive at about 10.00 a.m., near the place where the
body of the child was recovered from a heap of stones. The accused alone
seen alive subsequently at 03.00 p.m. There is no plausible explanation from
the accused what he did after dropping P.W.2 at her house and taking the
child in the TVS-XL. The child has been seen naked with bodily injury
including her private parts. She had been covered with heap of stones to
destroy the evidence. The offence been committed by the accused and same
proved through the witnesses for prosecution.
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33. Regarding the silver anklet owned by the deceased minor
girl, the same has been recovered from the pouch in the TVS-XL (M.O.6).
How the anklet came to the pouch of the TVS-XL which was in possession
of the accused is within the exclusive knowledge of the accused and
accused has not given any explanation. Therefore, the theft of silver anklet
from the minor child also held to be proved.
34. The postmortem report marked as Ex.P6 has observed the
following external injuries:-
''External Injuries:-
1. Abrasion 4 x 3 cm., over Left Leg.
2. Abrasion 1 x 5 cm., over Medial aspect of Right Knee.
3. Abrasion 2 x 3 cm., over Right Iliac Fossa region.
4. Abrasion 2 x 2 cm., over Right Inguinal region.
5. Multiple abrasions of size 0.5 x 0.5 cm., over Back.
6. Multiple abrasions of size 0.5 x 0.5 over Left back of
Thigh, Left Leg and Back of Right Leg.
7. Abrasion 3 x 3 cm., over Lower Jaw.
8. Abrasion 3 x 3 cm., over Left Ankle.
9. Contusion present over the Back and both Shoulders.
10. Contusion present below the Left Eye.''
35. Brutal attack by the accused on the 4 year old girl child is
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clearly seen from the injuries found on her body. Therefore, this Court
holds that the prosecution evidence is sufficient enough to hold the accused
guilty of kidnapping, murder, committing aggravated penetrative sexual
assault on a minor child, theft and attempt to destroy the evidence and same
proved beyond any reasonable doubt. The learned counsel for the appellant
canvassed violation of Sections 19(3) and 21 of JJ Act, 2015 regarding the
sentence while adverting to this point, we find Section 19(3) reads as
below:-
“19. Powers of Children's Court.—
(3) The Children's Court shall ensure that the
child who is found to be in conflict with law is sent to a place
of safety till he attains the age of twenty-one years and
thereafter, the person shall be transferred to a jail:
Provided that the reformative services including educational
services, skill development, alternative therapy such as
counselling, behaviour modification therapy, and psychiatric
support shall be provided to the child during the period of his
stay in the place of safety.”
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36. The date of birth of the appellant is 21.08.2000. As on date
he has crossed 23 years of age. From the record, we find that immediately
after his arrest he was sent to Salem Observation home from 16.12.2017 to
10.09.2018 thereafter, transferred to Melur Observation home and kept there
from 10.09.2018 to 22.08.2019. Thereafter from 22.08.2019 he is in Central
Prison, Madurai.
37. Obviously we find from the above particulars there is some
infraction of Section 19(3) of JJ Act, 2015, however, the accused having
crossed 23 years of age and what has been done cannot be undone at this
point of time, we leave it as it stand, pointing out the infraction.
38. As far as violation of Section 21 of JJ Act, 2015 imposition
of Life sentence is concerned, this Court after careful consideration of the
provisions under JJ Act, 2015 and POCSO Act finds that the bar under JJ
Act, 2015 is with regard to imposing death sentence and life imprisonment
without the possibility of release, this Court is of the view that to secure the
ends of justice, it is imminent in this case to exercise the power under
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Article 226 of the Indian Constitution and qualify the sentence of life
imprisonment imposed for the offence under Section 302 of IPC by holding
that there will not be a bar for his premature release in the meanwhile and
fine of Rs.5,000/- in default to undergo 6 months simple imprisonment.
39. Accordingly, this Criminal Appeal is partly allowed. The
period of imprisonment already undergone by the appellant/accused shall be
set off under Section 428 of Cr.P.C. All other aspects of conviction and
sentence imposed by the trial Court is hereby confirmed except that the
appellant will not be disentitled to any remission.
[P.N.P., J.] & [G.J., J.]
NCC : Yes 06.01.2023
Index : Yes/No
Internet : Yes
am
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To
1.The Sessions Judge,
Fast Track Mahila Court, Dindigul.
2.The Inspector of Police,
Vadamadurai Police Station,
Dindigul District.
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper,
Vernacular Records Section,
Madurai Bench of Madras High Court, Madurai.
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P.N.PRAKASH, J
AND
DR.G.JAYACHANDRAN, J
AM
Judgment made in
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06.01.2023
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