MADHU Vs. STATE OF KERALA

JUDGEMENT

(1.) When a man abandons his wife and children, roving vultures wait to prey on not only the abandoned woman, but also the helpless children. In this case we have a 'poojari'/'komaram' (priest/oracle in a temple) taking the abandoned woman and the three children under his wing, only to repeatedly molest the elder girl child, that too in the presence of her siblings. We wonder which God would accept the obeisance and offerings of such a priest or make him a medium?

(2.) We have heard learned Counsel Sri.K.M.Firoz for the appellant/accused and Smt.Sheeba Thomas, learned Public Prosecutor for the State.

(3.) Sri.Firoz took us through the charge to point out that there is a misjoinder of charges. The Protection of Children from Sexual Offences Act, 2012 ['POCSO Act' for brevity] was brought into effect from 14.11.2012 and the incident on which the first charge is levelled is prior to 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 rigour of a defence under the POCSO Act, which casts a reverse burden on the accused, prejudices him insofar as the charge under the IPC with respect to the sole incident alleged prior to the POCSO Act. It is argued from the evidence of PW1, the prosecutrix and PWs.6 and 10, the two house owners, that there is no question of the offences being committed in the respective residential buildings as alleged, for reason of the inconsistent facts brought forth in the evidence of these witnesses. The deposition of PW1 does not specify the date and only speaks of having joined the accused after the final exams of the academic year 2012. Hence there could not have been such an incident on 16.02.2012, before the close of the academic year. PW6 also says that the accused had taken the house on rent in 2012 and the victim joined him after six months.