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“We wonder which God would accept the obeisance and offerings of such a priest or make him a medium?” Justice Vinod Chandran of Kerala High Court said.

The Court was hearing a matter involving a priest accused of repeatedly raping a school-going young girl in the presence of her siblings and mother, over a period of time.

FACTS:

The victim, her siblings, and her mothers were homeless and living on the streets when the accused, a priest, took them under his wing. The accused usually came home drunk in the night and regularly assault the mother and children and used to sexually molest the victim. The victim, in her statement, also stated that she was sexually molested numerous times. She also stated that the accused had threatened to kill her if she raised her voice against the continuous torture.

The accused was charged under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

CONTENTION OF DEFENCE

Mr. Firoz Shah, representing the accused raised a contention as to the charges under the POCSO Act. He stated that, POCSO Act was brought into effect from 14.11.2012 and the incident on which the first charge is leveled is prior to Crl.A.No.644/2016 - 3 - the POCSO Act and requires a committal proceeding under the Cr.P.C. This is unlike the later allegation, which raises a charge under the POCSO Act, where the Special Court could take cognizance of it under Section 33 of the POCSO Act. It is also pointed out that clubbing of the charges has resulted in grave prejudice to the accused, since the POCSO Act by Sections 29 and 30 raises a presumption against the accused.

The Defence further contended that the age of the victim has not been proved and hence the accused cannot be held liable under the POCSO Act.

FINDING OF THE COURT

The Court held that the contention of defence that the age of the victim has not been proved stands. However, the Court pointed out that the under POCSO Act when a special court is hearing a matter under the POSCO ACT, it is also empowered to try any offence at the same trial. The Court stated that:

"When the offences, which arise from the very same act, are tried together and the age of the victim is not proved, it is not as if the offence under the IPC charged against the accused would fall to the ground since no committal proceedings have been carried out under the CrPC.,"

The Court held that it is due to the prosecution’s inability to gather the date of birth of the victim from her father that the accused might go scot-free. Specifically, the Court stated:

Strangely enough, the prosecution did not elicit the date of birth from the father. This lapse is one we encounter daily and we have today raised a suo motu case on this aspect of the indifference and incompetence displayed by the Prosecutors resulting in the offenders going scot-free.

On the defence of the accussed being caused prejudice due to clubbing of charges the Court held that:

“The grounds of prejudice urged fails also for the reason that it is merely imaginary. We reject it at the outset on the above reasoning and also on the appellant having merely 'cried foul' without the particular prejudice caused or the specific failure of justice, having been stated or substantiate.”

Therefore, the Court partly allowed the appeal by setting aside the appellant's conviction under the POCSO Act and Section 376(2) IPC. However, since the offence of rape was proved, the accused was convicted under Section 376(1) IPC and sentenced the accused to.

Case Title: Madhu v. State of Kerala and Ors