IN THE HIGH COURT OF KERALA AT ERNAKULAM
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
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).
AGED 29 YEARS,W/O KASIM,BEERANKUTTINTE PURAKKAL
HOUSE,TANUR POST-676302,MALAPPURAM DISTRICT.
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:
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
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,
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
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.
ANNEXURE A-1. TRUE COPY OF THE O.P.NO.613/2017 FILED BY
THE DEFACTO COMPLAINANT BEFORE THE FAMILY
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
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
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.