1. This appeal is at the instance of the sole accused in S.C.No.611/2016 on the files of the Special Court under the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the PoCSO Act’ hereinafter), Kasaragod, arising out of Crime No.271/2016 of Ambalathara Police Station, Kasaragod, challenging the conviction and sentence imposed against him in the said case.

2. Heard the learned counsel for the appellant/accused and the learned Public Prosecutor, in detail. Perused the verdict under challenge and the records of the Special Court.

3. In this case, the prosecution alleges the commission of offences punishable under Sections 3(a), 5(f) r/w 6 and 5(m) r/w 6 of the PoCSO Act, and under Sections 377 and 503 r/w 506(ii) of the Indian Penal Code (for short ‘the IPC’ hereinafter), by the appellant/accused.

4. The prosecution case is that, at about 16.00 hrs. and 17.30 hrs. on 10.07.2016, the accused, who is the Usthad of Madrassa attached to Udayanagar Rahmaniya Juma Masjid, subjected the survivor, (PW1) who had been studying in 1st Std., to unnatural sexual intercourse. Thus, the accused committed the aforesaid offences. The prosecution case further is that CW3 also was subjected to unnatural sexual intercourse by the accused at 13.30 hrs. on 25.05.2016 for which a separate crime was registered.

5. In this matter, the Special Court framed charge for the aforesaid offences and proceeded with trial. During trial, PW1 to PW16 were examined and Exts.P1 to P22 were marked on the side of the prosecution. No defence evidence was adduced.

6. On appraisal of the evidence, the Special Court found that the accused committed offences punishable under Sections 3(a), 5(f) r/w 6 and 5(m) r/w 6 of the PoCSO Act and under Sections 377 and 503 r/w 506(ii) of the IPC. Accordingly, he was convicted for the said offences and sentenced as under:

                  “In the result,

                  1. The accused is sentenced to undergo rigorous imprisonment for 20 years (Twenty years) and to pay a fine of Rs.1,00,000/-for the commission of an offence punishable under section 3(a), 5(f) r/w 6 of the Protection of Children from Sexual Offences Act, 2012. In default of payment of the fine, the accused shall undergo rigorous imprisonment for 1 year (One year).

                  2. The accused is sentenced to undergo rigorous imprisonment for 20 years (Twenty years) and to pay a fine of Rs.1,00,000/-for the commission of an offence punishable under section 3(a), 5(m) r/w 6 of the Protection of Children from Sexual Offences Act, 2012. In default of payment of the fine, the accused shall undergo rigorous imprisonment for 1 year (One year).

                  3. The accused is sentenced to undergo rigorous imprisonment for 10 years (Ten years), and to pay a fine of Rs.1,00,000/- for the commission of an offence punishable under section 377 of The Indian Penal Code. In default of payment of the fine, the accused shall undergo rigorous imprisonment for 1 year (One year).

                  4. The accused is sentenced to undergo rigorous imprisonment for 3 years (Three years) and to pay a fine of Rs.25,000/- for the offence punishable u/s 503 r/w 506(ii) of the Indian Penal Code. In default of payment of the fine, the accused shall undergo rigorous imprisonment for 6 months (Six months).

                  5. The substantive sentences shall run concurrently.

                  6. The period of detention undergone by the convict/accused shall be set off against the substantive sentence of imprisonment, provided by section 428 of The Criminal Procedure Code, 1973.

                  7. The fine amount paid or realized from the accused/convict be paid to the victims/PW1 and PW4 as compensation u/s 357 of The Criminal Procedure Code, 1973.

                  8. The District Legal Service Authority, Kasaragod, is requested to fix the quantum of compensation payable to zxPW1 and PW4 /Victims after enquiry provided under the Victim Compensation Scheme.”

7. The learned counsel for the appellant/accused argued that the prosecution case, as per the charge was not proved by the evidence. That apart, on examination of the victim, no injuries were found by the Doctor to corroborate the anal intercourse alleged to be committed by the accused on PW1, the victim. Therefore, the evidence of PW1 was not corroborated by the support of medical evidence. Relying on Exts.P17 and P18, Attendance Register and Muallim Admission Register, it is contended by the learned counsel for the appellant/accused that on the date of occurrence, the appellant/accused was not on duty as the Usthad/teacher of the Madrassa and therefore, the allegations against the appellant/accused failed to be proved by the prosecution beyond reasonable doubts and thus, the appellant/accused would deserve acquittal on the ground of benefit of doubt.

8. Whereas, it is submitted by the learned Public Prosecutor that, as far as the occurrence is concerned, the same was in between 16.00 hrs. and 17.30 hrs. on 10.07.2016 and therefore, the Doctor, who examined the victim on 17.07.2016 did not notice any corresponding injuries and the time gap between 10.07.2016 to 17.07.2016 would have been sufficient to heal the wound, if any, and going through the nature of allegations, any injuries to the victim might not have happened. It is submitted by the learned Public Prosecutor further that the prosecution case has been spoken by PW1, supported by the other witnesses and in such a case, the argument advanced by the learned counsel for the appellant/accused that the prosecution case not proved as per the charge, would not sustain. According to the learned Public Prosecutor, the appellant/accused not only worked as the Usthad/teacher of the Madrassa, he also worked as the 'Mukri' to call the Holy Bang and Ext.P17 Attendance Register would show that he was present during the time of occurrence as the Mukri, though till 13.07.2016, the Madrassa was not functioned as seen from Ext.P18 Muallim Admission Register and as spoken by PW10. Therefore, the absence of the appellant/accused during the relevant period of occurrence, as pointed out by the learned counsel for the appellant/accused has no legs to stand and the same would tumble down. Accordingly, he pressed for confirmation of the conviction and sentence.

9. Adverting to the rival arguments, the points arise for consideration are;

                  (i) Whether the Special Court was right in holding that the appellant/accused committed offence punishable under Section Section 3(a) of the PoCSO Act?

                  (ii) Whether the Special Court was right in holding that the appellant/accused committed offence punishable under Section 5(f) r/w 6 of the PoCSO Act?

                  (iii) Whether the Special Court was right in holding that the appellant/accused committed offence punishable under Section 5(m) r/w 6 of the PoCSO Act?

                  (iv) Whether the Special Court was right in holding that the appellant/accused committed offence punishable under Section 377 of the IPC?

                  (v) Whether the Special Court was right in holding that the appellant/accused committed offence punishable under Section 503 r/w 506(ii) of the IPC?

                  (vi) Whether the verdict would require interference?

                  (vii) The order to be passed?

Point Nos.(i) to (vii)

10. The prime witness for the prosecution is none other than PW1. PW1 deposed that on the date of examination as on 30.11.2018, he had completed 13 years and had been studying in 7th standard in Govt. Higher Secondary School, Parappa. Before that, he stayed along with his big-mother Raziya and he studied from 4th class to 6th class in Govt.U.P.School, Pullur. During that period, he had joined Madrassa where the appellant/accused was the Usthad, for studying in 1st class. He was taught by the appellant/accused, who also was the Mukri of the Mosque. PW1 deposed that he could identify the Usthad and he identified him at the dock. He testified that the Usthad called him to the room of the Usthad and sexually molested him. According to him, the Madrassa is attached to the Mosque, on a Sunday, during the year 2016, after the ‘Asr’ prayer, Usthad hugged PW1 and put his tongue on the mouth of PW1. Then he placed PW1 on the cot and removed his pants and jetty. Thereafter, Usthad smeared oil on the anus of PW1, and also on his penis. Then, Usthad inserted his penis into the anus of PW1, as a result of which, PW1 sustained pain. When PW1 complained of pain, Usthad closed his mouth by using his hand and threatened him not to disclose the same to anybody, if so, he would be killed. His version further is that the Madrassa classes were usually conducted between 6.30 a.m. and 8.30 a.m. On the day of the occurrence, the appellant/accused told PW1 that, as PW1 was not even familiar with the Arabic letters, he should bring a slate and a pencil to learn it. Accordingly, when PW1 reached the Madrassa, he was subjected to sexual assault. After the sexual assault, Usthad taken him to the bathroom and bathed him and PW1 reached the house. He did not disclose the same to anybody, as he was afraid of the Usthad and he went on sleep. When his big-mother came and asked, why he was sleeping, he replied that nothing. Then, the big-mother found blood stains on the bed sheet he had laid and the big-mother asked about it and at this juncture, on 17.07.2016, the next Sunday, he had disclosed the overt acts of the appellant/accused and then, he along with his big-mother reached Ambalathara Police Station and given statement before the Police. Thereafter, he also had given statement to the Magistrate and the Magistrate recorded the same and PW1 put his signature in the statement. He himself and the big-mother identified his signature in Ext.P1, the 164 statement recorded by the learned Magistrate on 18.07.2016. He also deposed that he disclosed the same to the Doctor, who examined him. He had shown the room of the Usthad. According him, his date of birth was 21.11.2006 and he had been studying in 5th class at Pullur Govt.U.P School during the relevant time. During cross-examination, PW1 deposed about his grievance in connection with the occurrence, though he did not know the time when big-mother found the blood on the bed sheet, but he answered that he had informed the occurrence at noon. Some minor variations in his previous statement were sought to be elicited during his cross-examination. However, none of them was marked and proved as a contradiction. Therefore, the same has no legal consequence. A suggestion was put to PW1 that he had given the statement before the learned Magistrate at the instance of the Police. He emphatically denied the suggestion.

11. The prosecution examined PW4, another minor, who also was subjected to sexual assault by the appellant/accused on a Friday during 2016 to show that the Usthad was in the habit of sexually molesting students. Nothing was elicited from the evidence of PW4 to discredit his testimony.

12. The prosecution further examined PW5, Dr. Sumaisa T.M.C., who examined PW1 while serving as the Chief Medical Officer (CMO) at the District Hospital, Kanhangad. She deposed as under:

                  “On 17.07.2016 while I was working as CMO at District Hospital, Kanhangad at 9.20 PM. I examined one Sinan.S, S/o Salim aged 10 years male with the alleged history of sexual assault done by Madrassa teacher from Madrassa study place, he poured oil over his anus and inserted penis into his anus on 10.07.2016 evening between 4.00 – 5.30 pm. On examination – there is history of pain over anus. There was tenderness over anus. One finger loose on anus. History of blood spots on the cloths on that day. This is the report of the examination of male victim of sexual assault issued by me which bears my signature name and seal. Report of the examination of male victim of sexual assault dated 17.07.2016 is marked as Ext.P6. Opinion – finding are consistent with the alleged history of unnatural offence.

                  I had been questioned by the Investigating Officer. On 18.07.2016 one Dr.Dileep. B Nair, the then CMO of the same hospital was working along with me. I have acquaintance with the signature and handwriting of Dr.Dileep.B.Nair who is now in abroad. The report showing contains the signature and handwriting of CW12 Dr.Dileep B.Nair. The report of examination of victim male of sexual assault dated 18.07.2016 is marked as Ext.P7. As per Ext.P7, CW12 examined one Abdul Rasique.C.R. S/o.Mummed 12 years boy with the alleged history of sodomized the victim by force asked him to go to his room to retrieve box, locked the door and forced him. As per Ext.P7 anus admits one finger with pain.”

                  During cross examination PW5, it was stated that he did not opine anything in Exts.P6 and P7.

13. Apart from this evidence, in order to prove the potency of the appellant/accused, PW6 - Dr.Sriuthi V, CMO at District Hospital, Kanhangad was examined. PW6 deposed that, she had examined the appellant/accused, by name Abdul Haneef Madani and on his examination, the Doctor found that “there is nothing to suggest that the above person is incapable of performing the sexual act.” This aspect is not disputed. Ext.P9 is the scene mahazar and the same was tendered in evidence through PW7, who had only hearsay knowledge regarding the occurrence, though he deposed in terms of Ext.P9.

14. In order to prove the age of the victim, PW2, the Headmaster of Govt.U.P.School, Pullur was examined and he had produced Ext.P2 school certificate showing the date of birth of PW4 as 21.10.2004. Apart from that, he also produced the school certificate showing the date of birth of PW1 as 21.11.2006 as per Ext.P3. He was cross-examined with the suggestion that Exts.P2 and P3 had been fabricated at the instance of the Police. He denied the suggestion and stated that the entries in the school register were made on the basis of the particulars furnished by the guardians of the students at the time of their admission. In fact, the status of the victim, as a child, is not disputed.

15. In order to prove that the appellant/accused worked as Usthad of Rahmaniya Madrassa attached to Rahmaniya Mosque, Udayanagar, PW10, the Secretary during 2010 onwards got examined and according to him, the appellant/accused worked as the Mukri and also the Madrassa Usthad from 27.03.2016 to 17.07.2016 and he had hearsay knowledge regarding sexual assault by the appellant/accused against PW1 as on 17.07.2016. It was through him, Ext.P17, the Attendance Register of students of the Madrassa showing the name of the victim and Ext.P18, the Muallim Admission Register showing the appellant/accused as the Mukri Usthad as per Sl.No.1, were proved. According to him, the appellant/accused worked as Usthad and Mukri from 27.03.2016 till 17.07.2016 and he handled classes I, III, V and VI and Ext.P19 identified as the Muallim Attendance Register showing that as on the date of occurrence, the appellant/accused worked therein as Mukri, though there was no Madrassa from 10.07.2016 till 13.07.2016.

16. Here, one of the contentions raised by the learned counsel for the appellant/accused is that no convincing evidence has been adduced to prove that the appellant/accused was working in the Madrassa as on 10.07.2016, since the Attendance Register of the Madrassa does not reveal his presence prior to 14.07.2016. In fact, as pointed out by the learned Public Prosecutor, Ext.P18 is the Muallim Admission Register, as per which, it could be noticed that the appellant/accused worked not only as the Usthad, but also as the Mukri from 27.03.2016 to 17.07.2016. It is not in dispute that a Mukri or Muaddin, who is entrusted with calling the Holy Bang, would be available on all days, as the Bang is to be called five times a day in a mosque and its performance cannot be disrupted. Therefore, the absence of the Mukri or Muaddin from the Mosque and the attached Madrassa on 14.07.2016, could not be inferred merely from the Attendance Register of the Madrassa. Accordingly, this contention could not be appreciated, as the Muallim Register shows his presence in the Mosque on the date of occurrence.

17. Similarly, it is submitted by the learned counsel for the appellant/accused that the prosecution evidence is against the charge. In fact, this contention also could not be appreciated, as the crux of the charge is the commission of carnal intercourse amounting to aggravated penetrative sexual assault and the intimidation of the victim to prevent disclosure of the same. The said allegation could be found through the evidence of PW1, supported by the other evidence discussed in detail. Therefore, this contention also must fail. Regarding the absence of injury to the victim to corroborate the anal intercourse, the evidence of PW5, supported by Ext.P6 would show that, though PW1 was examined by PW5 after the seventh day of occurrence, viz., 17.07.2016, he had noticed that “there was tenderness over anus. One finger loose on anus”. Thus, this evidence is sufficient to corroborate the version of PW1. Thus, this challenge also would not yield. In short, none of the contentions raised by the learned counsel for the appellant/accused to assail the verdict could be found to have any merit and, therefore, the conviction imposed by the learned Special Judge is liable to be confirmed.

18. Coming to the sentence, the learned Public Prosecutor would submit that the appellant/accused had involved in four other crimes of similar nature. He further submitted in particular that another case has also been registered against the appellant/accused for committing aggravated sexual assault on PW4. Here, the sentence imposed is 20 years for the offences punishable under Sections 3(a), 5(f) r/w 6 and 5(m) r/w 6 of the PoCSO Act. The sentence imposed is the minimum sentence prescribed for the said offences. Therefore, no interference in the sentence is warranted.

Hence, this appeal fails and is dismissed by confirming the conviction and sentence imposed by the Special Court. Since the appellant/accused is in Jail, no other orders are required.

Registry is directed to forward a copy of this judgment to the Special Court, for information and further steps.