Shebin v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941** **CRL.MC.NO.7085 OF 2019(E)** **SC 561/2014 OF SPECIAL COURT UNDER POCSO ACT, THODUPUZHA CRIME NO.1041/2014 OF KUMILY POLICE STATION, IDUKKI** ## **PETITIONER/ACCUSED:** **SHEBIN, S/O.SEKHARAN, KURISADIYIL HOUSE, OTTAKATHALAMEDU BHAGAM, CHAKKUPALLAM KARA, CHAKKUPALLAM VILLAGE, KUMALY, IDUKKI DISTRICT.** **BY ADV. SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **(C.R.)** ALEXANDER THOMAS, J. -------------------------------------Crl.M.C. No. 7085 of 2019 -------------------------------------- Dated this the 11[th] day of November, 2019 ## O R D E R The petitioner has been arrayed as the sole accused in the instant Sessions Case S.C. No. 561/2014 on the file of the Additional Sessions Court notified to deal with the POCSO cases, Thodupuzha, for offences punishable under Secs.363 & 376 of the IPC and Secs.3 & 4 of the POCSO Act, 2012. 2. The prosecution case in short is that, the defacto complainant in this case is the minor victim girl who was then aged 14 years and that, on 29.9.2014 at about 8.30 am when she was going to school, the petitioner accused then aged 18 years had kidnapped her from the lawful guardianship of her parents with the intention to have sexual intercourse with her and that the petitioner after promising her that he would marry her taken her in an autorickshaw and had taken her to the place of occurrence and had committed sexual intercourse with her in the back seat of the autorickshaw without her consent, and thereby the petitioner has committed the abovesaid offences. Crl.M.C. No. 7085 of 2019 ..3. 3. The evidence in this case has been commenced and the minor victim girl has been examined by the prosecution as PW2. One of the cases set up by the petitioner is that the minor victim girl was having a love affair with the petitioner and that she had sent a series of love letters to him, and that even if it is assumed that the sexual intercourse has taken place it would have been only on the basis of consent. While confronting the minor victim girl in that aspect, she has strongly denied the factum of any love affair between the parties and that she has also taken the definite stand that she is not the author of the alleged love letters, etc. Thereupon the petitioner made an application as per Crl.M.P. No. 3373/2019 in S.C. No. 561/2014 making a plea that the abovesaid love letters whcih according to him are written in the handwriting of the minor victim girl, should be subjected to expert handwriting analysis, and if that is so done, the petitioner will be able to prove the fact that the author of the said letters is none other than the minor victim girl, and that her very version given before the Court that there was no consent and that she is not the author of said letters, etc would be proved as blatantly false. 4. The learned Sessions Judge as per the impugned Anx.F Crl.M.C. No. 7085 of 2019 ..4. order has rejected the said plea as per order dated 19.9.2019 rendered on Crl.M.P. No. 3373/2019 in S.C. No. 561/2014 mainly on the ground that the since the victim in this case is admittedly a minor who has not completed the age of majority at the time of commission of offence, then the factum of consent or no consent is immaterial,and the mere fact of sexual intercourse would be sufficient to prove the commission of offence, and therefore making an enquiry into the authorship of alleged love letters etc is a futile exercise and would amount to waistage of time, and that accordingly his plea stood rejected. It is this rejection order at Anx.F dated 19.9.2019 that is under challenge in this Crl.M.C. 5. Heard Sri.Domson J.Vattakuzhy, learned counsel appearing for the petitioner accused and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondent State. 6. After hearing both sides and after anxious consideration of the rival submissions, it has to be borne in mind that Sec.30 of the POCSO Act engrafts a heavy presumption of culpable mental state of the accused and surely the accused who is entitled to be presumed innocent until his guilt is proved, has the right at least to lead evidence to rebut the said statutory presumption. True that it is Crl.M.C. No. 7085 of 2019 ..5. immaterial as to whether the minor victim girl gives consent or not, as the mere fact of sexual intercourse committed on the victim who is a minor alone would be sufficient to prove the commission of offence. But the fact of the matter is that the petitioner has taken a definite case that there was consent between the parties and further that the alleged love letters addressed to him was written by none other than the minor victim girl, and the said letters were passed on to him by none other than the minor victim girl. Whereas the minor victim girl would take the considered stand that the love letters are not in any manner authored by her. 7. In the light of these rival pleas made by the rival parties, there appears to be strong force in the contention raised by Sri.Domson J.Vattakuzhy, learned counsel appearing for the petitioner accused that if by handwriting analysis it is proved that the victim herself is the author of said letters, then certainly the petitioner would be able to place a vital and strong contention before the trial court that the very believability and credibility of the version of the prosecutrix is at stake. And that further he would be able to successfully displace the heavy presumption engrafted by the Crl.M.C. No. 7085 of 2019 **==> picture [17 x 9] intentionally omitted <==** legislature in terms of Sec.30 of the POCSO Act, atleast to some extent. In the light of these crucial aspects, this Court is of the view that the said valuable defence of the accused may be irreparably lost if the plea of the petitioner for subjecting the abovesaid love letters for handwriting analysis is totally denied. 8. After all as to how the defence case is to be shaped up, is a matter which is in the exclusive province and domain of the defence. Of course, if the endeavour to give defence evidence is to lead to irrelevant areas or for prolonging the agony of trial, etc, then certainly the trial court has the final say to see through those intricate matters and then decide as to whether the plea made by the defence is bonafide or not , and if the plea is not found to be bonafide and but is only meant for extraneous purposes like dragging the trial etc, then certainly the trial court would be justified to reject such plea. Whereas once the trial court is broadly satisfied that the plea of defence is bonafide, then the valuable rights of the defence should not be curtailed by the trial court. We are governed by a legal system which is regulated by constitutional provisions as per Article 20(2) of the Constitution of India, whereby a precious right is given to the accused Crl.M.C. No. 7085 of 2019 **==> picture [15 x 9] intentionally omitted <==** to remain silent, and it is the bounden duty of the prosecution to prove beyond reasonable doubt the guilt of the accused. But at the same time once the defence decides to lead evidence in support of defence pleas, then the said valuable rights should have to be respected and due deference will have to be shown by the criminal courts concerned. 9. It is also now well established that the liberty of an accused can be curtailed only in accordance with due procedure and it is also trite that predominantly the due procedure is prescribed by the Parliament in terms of Code of Criminal Procedure or as per the relevant procedural aspects, engrafted in the special laws concerned. But it is also an elementary constitutional position of law that the said constitutional rights and liberties can be curtailed only in accordance with the procedure which is just fair and reasonable. Therefore the entire provisions of the Code of Criminal Procedure engrafted by the Parliament would also be informed by the all pervasive provisions of the Constitution of India. Suffice to say that the rejection of the defence plea on untenable grounds would amount to violation of due process which has to be strictly adhered to Crl.M.C. No. 7085 of 2019 ..8. all the organs of the State including the judicial organ. 10. It will be profitable to read para 17 of the decision _**Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another [2019 (5) KHC 352 (SC)].**_ “ _17. It is clear that a fair trial must kick off only after an investigation is itself fair and just. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering of all the provisions of the Cr.P.C., so as to ensure that Article 21 is followed both in letter and in spirit.”_ 11. There is yet another vital contention raised by Sri.Domson J.Vattakuzhy, learned counsel appearing for the petitioner accused, would has also urged that though the question of consent in the case of the minor victim girl in sexual offences may be immaterial, and that certainly the present crucial aspect regarding the existence or otherwise of the love affair between the parties would also be a highly relevant factor in determining the quantum of sentence in such cases. The said c0ntention of the petitioner also deserves serious consideration and cannot be brushed aside by any court. In the light of these aspects this Court is constrained to take the Crl.M.C. No. 7085 of 2019 **==> picture [17 x 9] intentionally omitted <==** view that the dismissal of the plea of the petitioner as per the impugned Anx.F order dated 19.9.2019 rendered by the Special Court notified to deal with POCSO Cases, Thodupuzha, is illegal and ultra vires and is vitiated for not taking into account crucial and relevant aspect of the matter. In that view of the matter this Court is of the view that, the impugned Anx.F order deserves interdiction at the hands of this Court by exercise of the inherent powers conferred under Sec.482 of the Cr.P.C. 12. Accordingly it is ordered that the impugned Anx.F rejection order dated 19.9.2019 will stand set aside and the plea made by the petitioner accused in Crl.M.P. No. 3373/2019 in S.C. No. 561/2014 on the file of the Special Court notified to deal with POCSO Cases, Thodupuzha, will stand allowed by directing that the Special Court will take immediate steps to send the abovesaid letters to be subjected to expert handwriting analysis by the experts of the Forensic Science Laboratory. The sample handwritings and sample signatures of the minor victim girl may also be duly recorded on the basis of the consistent practice and procedure in that regard, so that the requisition is duly send to the experts of Forensic Science Crl.M.C. No. 7085 of 2019 **==> picture [21 x 7] intentionally omitted <==** Laboratory without any further delay. Having regard to the fact that the trial has reached the fag end, it is ordered that the trial court will expedite the process in this regard and the Forensic Science Laboratory authorities are directed to ensure that their expert opinion on the abovesaid issues are given to the abovesaid Special Court concerned without much delay preferably within a period of 2 months from the date of receipt of requisition in that regard. 13. The Director General of Prosecution is also requested to instruct the Forensic Science Laboratory to ensure that the process of analysis and submission of expert report is expedited without much delay so that the trial could be completed as early as possible. With these observations and directions the above Criminal Miscellaneous Case will stand disposed. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 7085 of 2019 ..11. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE INSPECTOR OF POLICE, MUMALY** **ANNEXURE B TRUE COPY OF THE DEPOSITION OF THE VICTIM/PW2** **ANNEXURE C TRUE COPY OF THE LETTER ALLEGED TO HAVE BEEN WRITTEN BY THE VICTIM TO THE PETITIONER** **ANNEXURE C-1 TRUE COPY OF THE LETTER ALLEGED TO HAVE BEEN WRITTEN BY THE VICTIM TO THE PETITIONER** **ANNEXURE C-2 TRUE COPY OF THE LETTER ALLEGED TO HAVE BEEN WRITTEN BY THE VICTIM TO THE PETITIONER** **ANNEXURE C-3 TRUE COPY OF THE LETTER WRITTEN BY THE VICTIM TO THE PETITIONER** **ANNEXURE D TRUE COPY OF THE PETITION IN CRL.APPEAL NO.3373/2019** **ANNEXURE E TRUE COPY OF OBJECTION FILED BY THE PROSECUTION** **ANNEXURE F TRUE COPY OF THE ORDER DATED 19.09.2019 ON THE FILE OF THE SPECIAL COURT UNDER POCSO ACT AND CHILDREN'S ACT, THODUPUZHA**