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Shihab V.P vs State Of Kerala on 14 November, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

WEDNESDAY,THE 14TH DAY OF NOVEMBER 2018 / 23RD KARTHIKA, 1940

Crl.MC.No. 3959 of 2018

AGAINST THE ORDER/JUDGMENT IN SC 958/2017 OF SPECIAL COURT FOR THE
TRIAL OF OFFENCES AGAINST CHILDREN(ADDL.SESSIONS COURT 1)MANJERI

CRIME NO. 370/2017 OF Tanur Police Station , Malappuram

PETITIONER/ACCUSED:

SHIHAB V.P.
AGED 20 YEA,RS,S/O HAMSAKOYA,BEERANKUTTINTE PURAKKAL
HOUSE,TANUR POST,MALAPPURAM DISTRICT.

BY ADV. SRI.K.K.MOHAMED RAVUF

RESPONDENT/STATE AND DEFACTO COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM-682031.(REPRESENTING STATION HOUSE
OFFICER,TANUR POLICE STATION,MALAPPURAM DISTRICT).

2 SOUDABI,
AGED 29 YEARS,W/O KASIM,BEERANKUTTINTE PURAKKAL
HOUSE,TANUR POST-676302,MALAPPURAM DISTRICT.

BY ADVS.
SRI.J.R.PREM NAVAZ
SRI.P.T.SHEEJISH

OTHER PRESENT:
PP RAMESH CHAND

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.10.2018, THE
COURT ON THE 14/11/2018 PASSED THE FOLLOWING:
Crl.M.C.No.3959/2018 2

O R D E R

The sole accused in SC No.958/2017 of the Special Court for trial

of offences against children(Addl.Sessions Court-I), Manjeri, for offences

punishable under section 354 IPC and sections 9 (m),(n) and 10 of the

Protection of Children from Sexual Offences Act 2012, is the petitioner

herein. The offences were later altered to section 376 (2) (f) (i) (n) of

IPC read with section 5(1)(m)(n) and section 6 of POCSO Act.

2. Crux of the prosecution allegation is that, the petitioner herein

sexually abused a five year old girl at his bed room on a day in March

2018. Complaint was laid in August 2017 by the second respondent

herein, who is the mother of the victim. The petitioner contends that he

is absolutely innocent of the crime, parties are closely related to each

other and are living under one proof, that due to family disputes he has

been wrongly implicated, that there is substantial variation in the

statements filed by the defacto complainant and the parents and that

delay in registering the complaint has not been explained. He sought to

quash the proceedings on the ground that it is a false case.

3. Heard the learned counsel for the petitioner, learned Public

Prosecutor and the learned counsel for the defacto complainant.

4. Father of the petitioner and the father of the victim are

brothers. Defacto complainant is the wife of the younger brother and all
Crl.M.C.No.3959/2018 3

the members of the family are living together under same roof.

According to the petitioner herein, the defacto complaint had a case that

30 sovereigns of gold ornaments belonging to her was handed over by

her husband to her father-in-law in connection with the marriage of the

sister-in-law of the defacto complainant. Father of the petitioner had also

contributed 30 sovereigns of gold. Defacto complainant wanted to get

back the above 30 sovereigns and had filed O.P.No. 613/2017 before the

Family Court, Manjeri, against the father of the petitioner, the grand

father of the petitioner and the sister of the petitioner’s father. She had

also filed IA No.1582/2017 for attachment of 4.5 cents of land and the

residential house which belonged to the father of the petitioner. The

property which was sought to be attached was the one wherein the

victim and the defacto complainant along with the family were residing.

5. It was contended by the learned counsel for the petitioner that

admittedly parties were at loggerheads and, even according to the

statement of the defacto complainant, elders were not in talking terms.

It was also stated that, according to the defacto complainant, the alleged

incident was found out on the same day and even according to her, she

had conveyed it to her husband. However, complaint was filed only after

five months. It was contended that, this delay, essentially in the

background of the strained relationship was absolutely fatal and the

complaint was liable to be held as false one on that premise alone. It

was further contended that, there were substantial embellishments,
Crl.M.C.No.3959/2018 4

additions, modifications, improvements and contradictions in the

statement and section 164 Cr.P.C.statement of the victim and that of the

witnesses, Hence, he sought to quash the proceedings.

6. Evidently, there is delay of five months. The defacto complainant

had reported that she found out the victim on the day of the alleged

incident in the bed room of the petitioner. Her underwear was removed.

Victim had told the defacto complainant that the accused had removed it

and had laid himself on her body. This was immediately conveyed by her

to her husband. It is also on record that parties were under strained

relationship. Delay has to be appreciated in that background. However,

no explanation for delay is seen forthcoming in the statement given by

the defacto complainant.

7. It is also pertinent to note that in the FI statement there was only

an allegation that the petitioner herein had removed the undergarment of

the victim girl and placed himself on the body of the victim. However, in

the course of the investigation, further additions were made and now

new allegations of sexual assault are added. Learned counsel for the

petitioner further contended that version given by the defacto

complainant and her husband contradicted each other. Additional

allegations were raised at the belated stage, it was argued.

8. Definitely, in the statement of the father of victim, considerable

improvements were made and new acts of sexual abuse were also

mentioned in it. However, the question whether the delay is sustainable
Crl.M.C.No.3959/2018 5

and whether it is satisfactorily explained is a matter of fact. Whether,

further embellishment, additions and improvements seen in the

statement of various witnesses will affect the substratum of the case is

also a matter that is to be appreciated on the basis of the materials

brought on record. Since there is delay, especially in the back ground of

strained relationship and also embellishment at various stages, the

burden is heavily on the prosecution to explain it. Since the core

allegation of sexual abuse is reiterated in the various statements, though

with improvements at different stages, whether the substratum survives

is a matter that requires appreciation of the facts and materials.

9. Having considered the above facts, I am inclined to hold that this

is a matter beyond the scope of the exercise of jurisdiction under section

482 Cr.P.C.. Having considered this, I am not inclined to quash the

proceedings at the threshold. The petitioner is entitled to raise all his

objections before the trial court and even seek for discharge in

accordance with law. Crl.M.C.is accordingly dismissed.

Sd/-

SUNIL THOMAS

Dpk. JUDGE
Crl.M.C.No.3959/2018 6

APPENDIX
PETITIONER’S/S EXHIBITS:

ANNEXURE A-1. TRUE COPY OF THE O.P.NO.613/2017 FILED BY
THE DEFACTO COMPLAINANT BEFORE THE FAMILY
COURT,TIRUR

ANNEXURE A-2 TRUE COPY OF THE I.A.NO.1582/2017 IN
O.P.NO.613/2017 FILED BY THE DEFACTO
COMPLAINANT BEFORE THE FAMILY
COURT,TIRUR.

ANNEXURE A-3 TRUE COPY OF THE FIR IN CRIME NO.370/2017
OF TANUR POLICE STATION.

ANNEXURE A-4 TRUE COPY OF THE FIS IN CRIME NO.370/2017
OF TANUR POLICE STATION

ANNEXURE A-5 TRUE COPY OF THE STATEMENT OF THE FATHER
OF VICTIM AS CW3.

ANNEXURE A-6 TRUE COPY OF THE MEDICO-LEGAL EXAMINATION
REPORT.

ANNEXURE A-7 TRUE COPY OF THE STATEMENT TAKEN BY THE
POLICE FROM THE VICTIM.

ANNEXURE A-8 TRUE COPY OF THE STATEMENT RECORDED UNDER
SECTION 164 CR.P.C.

ANNEXURE A-9 TRUE COPY OF THE FINAL REPORT IN
S.C.NO.958/2017 OF THE SPECIAL COURT FOR
TRIAL OF OFFENCES AGAINST
CHILDREN(ADDL.SESSIONCS COURT I),MANJERI.

ANNEXURE A-10 TRUE COPY OF THE ORDER DATED 15.1.2018 IN
B.A.NO.9071/2017 OF THE HON’BLE COURT.

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