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Ajithkumar G vs State Of Kerala on 16 December, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941

Crl.MC.No.6689 OF 2019(E)

AGAINST THE ORDER/JUDGMENT IN SC 1010/2014 OF SPECIAL COURT UNDER
POCSO ACT, ALAPPUZHA

CRIME NO.331/2014 OF Punnapra Police Station, Alappuzha

PETITIONER/ACCUSED NO.2:

AJITHKUMAR G.,
AGED 29 YEARS,
S/O.GOPALAKRISHNAN, ASSARIPARAMBU, CHAMPAKULAM,
PULLANGADI P.O., ALAPPUZHA – 688 505.

BY ADVS.
SRI.S.SANAL KUMAR
SMT.BHAVANA VELAYUDHAN
SMT.T.J.SEEMA

RESPONDENT/STATE COMPLAINANT:

1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM -682 031.

2 VICTIM
X

R2 BY ADV. M.R.ARUNKUMAR

SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
16.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.6689 OF 2019

2

ALEXANDER THOMAS, J.

Crl.M.C.No.6689 of 2019

Dated this the 16th day of December, 2019

O R D E R

The petitioner herein has been arrayed as accused No.2 among

the two accused in the instant crime No.331/2014 of Punnapra Police

Station, Alappuzha for offences punishable under Sections 376(n) of the

IPC, Sections 3(2) read with Section 4 of the POCSO Act, 2012 and

Sections 3(1)(xi), Section3(2)(v) of Scheduled Caste and SectionScheduled Tribe

(Prevention of Atrocities) Act, 1989. The police after investigation has

duly filed the impugned Anx.A1 final report/charge sheet in the above

said crime No.331/2014 of Punnapra Police Station, Alappuzha and

after commuted proceedings the case is now pending as Sessions Case

S.C.No.1010/2014 on the file of the Additional District Sessions Court

notified to deal with POCSO cases, Alappuzha. The charges have also

been duly framed in this case as per Anx.A5 on 19.01.2019. The

petitioner seeks quashment of the impugned criminal proceedings

mainly on the ground that subsequently during the pendency of the

present proceedings, the petitioner/accused has married the 2 nd

respondent-lady victim and that the lady victim has no further issues
Crl.MC.No.6689 OF 2019

3

with the petitioner and that she does not wish to continue with the

prosecution proceedings any further. Further it is also submitted on

behalf of additional respondent No.2 (lady victim) that her marriage

with the petitioner has been duly solemnized as can be seen from

Anx.A2 marriage certificate dated 22.09.2017 issued by the Local

Marriage Registrar and that a girl child has also been born to her in her

relationship with the petitioner/accused, etc. In that regard petitioner

mainly place reliance on the decisions of this Court in cases as in

Freddy @ Antony Francis Ors. v. State of Kerala Anr.

[2017 KHC 344 2018 (1) KLD 558] and SectionDenu P.Thampi v. Ms.X

[2019 (3) KHC 199 2019 (2) KLT 996].

2. Heard Sri.S.Sanal Kumar, learned counsel appearing for the

petitioner (A2), Sri.Saigi Jacob Palatty, learned Prosecutor appearing

for R1-State and Sri.M.R.Arunkumar, learned counsel appearing for

contesting respondent No.2 (lady victim). The allegations/charges

framed on as per Anx.A5 dated 19.01.2019 are as follows:

Firstly, accused No.1, had committed rape on the prosecutrix (the

CW1), who was a juvenile belonging to a schedule caste community,

repeatedly at various places including in room No.107, MKT Providence

Lodge, Ward No.V, Purakkadu Grama Panchayat on 07.05.2013

between 12.30 P.M and 2.00 P.M and on 08.07.2013 between 9.30 A.M
Crl.MC.No.6689 OF 2019

4

and 5.30 P.M after made her believe that he would marry her and

thereafter putting her under fear that she would be blackmailed and

thereby committed the offence punishable under Section 376(2)(n) of

the IPC.

Secondly, 2nd accused had committed rape on the said CW1

repeatedly at several places including in the House bearing door

No.12/120, Nedumudi Grama Panchayat and in the said Providence

lodge on 14.11.2013 between 10.15 A.M and 5.45 P.M and as a result of

that she became pregnant, and thereby committed an offence

punishable under Section 376(2)(n) of the IPC.

Thirdly, the above said accused Nos.1 and 2 had committed gang

rape on the said CW1 at the said places and time, and thereby

committed an offence punishable under Section 376 D of the IPC.

Fourthly, the above said accused Nos.1 and 2 had committed

aggravated penetrative sexual assault on the said CW1 repeatedly and

she became pregnant, and thereby committed the offences punishable

under Sections 5(1), Section5(j)(ii) Section5 (g) r/w Sec.6 of the Protection of

Children from Sexual Offences Act, 2012.

Lastly, the above said accused Nos.1 and 2, by their aforesaid acts

had committed an offence punishable under Section 3(2) (v) of the

SC/ST (POA) Act, 1989, during the course of the same transaction
Crl.MC.No.6689 OF 2019

5

within the cognizance of the Court.

3. Going by the deposition of PW1 (R2 herein/victim) as per

Anxs.A3/ A6, she would say that she was born on 21.03.1995 and that

the entry in her school certificate that she was born in August 1995 is a

mistake. Anx.A2 is the marriage certificate issued by the Local Marriage

Registrar regarding the solemnization of marriage between the

petitioner/accused and the 2nd respondent and in Anx.A2 marriage

certificate, it is inter alia stated that the date of birth of 2 nd respondent

herein is 21.05.1996. This Court had specifically directed the learned

Prosecutor as well as the Court below to appraise this Court as to what

exactly is the date of birth of the 2nd respondent as per the prosecution

case.

4. The learned Prosecutor would point out that the specific case

of the prosecution as made out in the impugned Anx.A1 final

report/charge sheet is to the effect that the 2nd respondent herein was

born on 21.08.1995 as per the birth certificate issued by the statutory

Registrar of Births and Deaths. The Sessions Court has also confirmed

that as per the prosecution case the date of birth of the 2 nd respondent as

alleged by the prosecution is 21.08.1995. If that be so, going by the

admitted prosecution case, 2nd respondent herein has completed the

majority age of 18 years on 21.08.2013. A bare perusal of Anx.A5
Crl.MC.No.6689 OF 2019

6

charges would make it clear that like the day light that only a single

instance of sexual intercourse is said to have been done by the petitioner

and the specific case of the prosecution is that the petitioner had

committed sexual intercourse with the 2 nd respondent – victim on

14.11.2013. Therefore, admittedly going by the prosecution case 2 nd

respondent had completed the majority age of 18 years as on 14.11.2013,

the date of the alleged sexual incident. On that ground alone, it is only

to be held that none of the POCSO offences alleged against the

petitioner will lie. In that regard it is borne in mind that the case as

against 1st accused may stand in a different footing for the simple reason

that going by Anx.A5 charges, he said to have committed the act of

sexual intercourse on 07.05.2013 and 08.07.2013 and as on those days,

the 2nd respondent has not attained at the majority age of 18 years going

by the date of birth relied on by the prosecution, as admittedly she has

completed the majority age of 18 years only on 21.08.2013. Therefore,

the sole aspect which has to be borne in mind is that the contention

raised by the prosecution that the question of consent is immaterial, will

also crumble to the ground for the simple reason that the allegation as

against the petitioner herein (A2) regarding the sexual incident, which is

said to have happened on a day much after the 2 nd respondent complete

the majority age of 18 years, then the question of consent would also
Crl.MC.No.6689 OF 2019

7

assume great importance. All through out the petitioner/accused has a

definite case that even it is assumed that sexual incident has taken place,

then it was only on the basis of consent of the 2nd respondent and that

this is all the more so, as even the prosecution would allege that there

was an affair between the petitioner/accused and the 2nd respondent. It

is also relevant to note that the 2nd respondent had prematurely given

birth to the above said girl child on 30.05.2014. Further it is the

indisputable fact of the matter that the petitioner/accused has married

the 2nd respondent victim on 13.07.2017 as certified in Anx.A2 marriage

certificate dated 22.09.2017 issued by the Local Marriage Registrar.

5. That apart it appears that the alleged sexual incidents

involving A1 and A2 viz a viz, the 2 nd respondent victim appears to be

two different and distinct incidents. The only connection appears to be

that A1 and A2 were friends. As per Anx.A5 charges, A1 is said to have

committed sexual intercourse with the victim on 07.05.2013 and

08.07.2013. Whereas the petitioner herein (A2) is said to have

committed sexual intercourse with the victim on another occasion, viz

14.11.2013. There are no allegations that the above said incidents are in

any manner interrelated except that A1 and A2 happens to be friends

and the victim happens to be the same person. In these circumstances

this Court has no hesitation to hold that even otherwise the allegations
Crl.MC.No.6689 OF 2019

8

against A1 and A2 could not have been tried jointly as the above said

separate offences said to have been committed by A1 and A2 cannot be

said to have been offences committed in the course of the same

transaction as understood in Clause (b) of Section 223 of the Cr.P.C. So

this Court is of the view that, the joint trial is also misconceived. So also

since there is an allegation in Anx.A5 charge of gang rape, as the above

said incidents involving A1 and A2 are separate and distinct incidents,

the allegation that petitioner herein (A2) has committed gang rape on

the victim along with A1 herein also does not appear to be tenable.

6. Further it has been held by the Apex Court and various High

Courts in a series of decisions as in {see SectionShimbhu Anr. v. State of

Haryana [2014 (13) SCC 318], SectionParbatbhai Aahir v. State of

Gujarat [(2017) 9 SCC 641], SectionAnita Maria Dias v. State of

Maharashtra [(2018) 3 SCC 290], SectionSebastian @ Solly v. State of

Kerala [2015 (1) KLJ 384, etc.} that ordinarily quashment of serious

offences like the one as per Section 376 (rape), murder (302), decoity

may not be done merely on the ground of settlement between the

parties. However an exception has been made to this approach and it

has been held by this Court in various cases as in Freddy @ Antony

Francis Ors. v. State of Kerala Anr. [2017 KHC 344 2018

(1) KLD 558] and SectionDenu P.Thampi v. Ms.X [2019 (3) KHC 199 2019
Crl.MC.No.6689 OF 2019

9

(2) KLT 996]. In the instant case it appears that the petitioner has

subsequently married the 2nd respondent victim on 13.07.2017, as is

certified by Anx.A2 marriage certificate dated 22.09.2017 issued by the

Local Marriage Registrar.

7. The learned Prosecutor has requested to get instructions10

in this matter and today when the matter has taken up for

consideration, the learned Prosecutor would submit that on the basis of

the instructions from the Investigating Officer, the Investigating Officer

has conducted a detailed enquiry in the matter and also recorded the

statement of 2nd respondent, wherein she has stated that, she has duly

married the petitioner as certified in Anx.A2 marriage certificate and

that the factual aspects stated by her in Anx.A4 affidavit are correct and

has been made by her voluntarily and without any coercion. Further it

appears that the specific stand of the 2 nd respondent is that if the

impugned criminal proceedings are not quashed, then it affect her more

detrimentally and that her marital life will be disturbed and there will be

none to look after her and her girl child, as the accused is her husband.

In the light of these aspects going by the dictum laid by this Court in

decisions as in Freddy @ Antony Francis Ors. v. State of

Kerala Anr. [2017 KHC 344 2018 (1) KLD 558] and SectionDenu

P.Thampi v. Ms.X [2019 (3) KHC 199 2019 (2) KLT 996], this Court
Crl.MC.No.6689 OF 2019

10

is inclined to quash the impugned criminal proceedings in the light of

the subsequent marriage entered into between the parties.

8. Accordingly, in view of the above said aspects, it is ordered

that the impugned Anx.A1 final report/charge sheet as well as the

impugned Anx.A5 charges framed to the extent it is directed against the

petitioner herein(A2) for the offences as per Sections 376(2)(n), Section

376D (Gang Rape) and the offences as per Sections 5(I), Section5(j)(ii) Section5(g)

r/w Sec.6 of the Protection of Children from Sexual Offences Act, 2012,

will stand quashed and rescinded. Further 2nd respondent victim

belongs to Schedule Caste Community and therefore the offence as per

Section 3(2)(v) of the SC/ST (POA) Act, 1989 has also been included and

the same will stand quashed, to the extent it is directed against A2. It is

made clear the quashment of the impugned criminal proceedings at

Anx.A1 final report/charge sheet and Anx.A5 charges are only to the

limited extent it affects the petitioner herein (A2). It is made clear that

the independent offences alleged against A1, may proceed further in

accordance with law. However, it is made clear that since allegation

regarding Section 376 D (Gang Rape) is only in respect of involvement

of two accused persons and as the said allegation to the extent concerns

the petitioner herein (A2) has also been quashed, it goes without saying

that the the said quashment would also affect the charges as against the
Crl.MC.No.6689 OF 2019

11

other accused person also. The trial as against A1 herein may proceed in

accordance with law in respect of the charges against him, as indicated

above.

9. The Registry will forward copy of this order to the Additional

Sessions notified to deal with POCSO cases, Alappuzha who is dealing

with S.C.No.1010/2014 for necessary information. Petitioner will also

produce copies of the order before the Sessions Court concerned as well

as the Investigating Officer concerned. Office of the Advocate General

will forward copy of this order to the Investigating Officer concerned, for

necessary information.

With these observations and directions, the above Criminal

Miscellaneous Case stands finally disposed of.

Sd/-

ALEXANDER THOMAS

JUDGE
mpm
Crl.MC.No.6689 OF 2019

12

APPENDIX
PETITIONER’S EXHIBITS:

ANNEXURE A1 CERTIFIED COPY OF THE CHARGE SHEET IN
CRIME NO.331/2014 OF PUNNAPRA POLICE
STATION.

ANNEXURE A2 A TRUE COPY OF THE MARRIAGE CERTIFICATE
DATED 22/9/2017 ISSUED BY HE CHAMPAKULAM
GRAMA PANCHAYATH.

ANNEXURE A3 A TRUE COPY OF THE DEPOSITION GIVEN BY
THE 2ND RESPONDENT/DEFACTO COMPLAINANT IN
S.C.NO.1010/2014 ON THE FILE OF THE
ADDITIONAL DISTRICT SESSIONS COURT-1,
ALAPPUZHA.

ANNEXURE A4 A TRUE COPY OF THE AFFIDAVIT SWORN BY 2ND
RESPONDENT.

ANNEXURE A5 A CERTIFIED COPY OF THE COURT CHARGE IN
S.C. NO. 1010/2014 ON THE FILE OF THE
ADDITIONAL SESSIONS JUDGE-1, ALAPPUZHA.

ANNEXURE A6 CERTIFIED COPY OF THE DEPOSITION OF PW1
IN S.C.NO.1010/2014 ON THE FILE OF THE
ADDITIONAL DISTRICT AND SESSIONS COURT-1,
ALAPPUZHA.

ANNEXURE A7 CERTIFIED COPY OF THE DEPOSITION OF PW2
IN S.C.NO. 1010/2014 ON THE FILE OF THE
ADDITIONAL DISTRICT AND SESSIONS COURT-1,
ALAPPUZHA.

// TRUE COPY //
P.A. TO JUDGE

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