Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 13TH DAY OF JUNE 2022 / 23RD JYAISHTA, 1944 CRL.MC NO. 287 OF 2020 CR.NO.198/2017 OF VENGARA POLICE STATION, MALAPPURAM PETITIONERS/ACCUSED 2 TO 4: 1 MUJEEB PULLAT S/O.MAMMAD, KANNAMANGALAM P.O., VENGARA, MALAPPURAM DISTRICT-676 304. 2 YOUSEPH S/O.AHAMMED HAJI, NEDUMPALLY HOUSE, KANNAMANGALAM P.O., VENGARA, MALAPPURAM DISTRICT-676 304. 3 USMAN S/O.ABUBAKER, ETTUVELIL HOUSE, KANNAMANGALAM P.O., VENGARA, MALAPPURAM DISTRICT-676 304. BY ADVS. G.HARIHARAN PRAVEEN.H. RESPONDENT/STATE AND COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 SUB INSPECTOR OF POLICE, VENGARA POLICE STATION, VENGARA, MALAPPURAM DISTRICT-676 304. -:2:- 3 VICTIM X SMT T V NEEMA -SR PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: -:3:-
ORDER
Dated this the 13th day of June, 2022 This Crl.M.C has been filed to quash all further proceedings in Crime No.198/2017 of Vengara Police Station, Malappuram.
2. The petitioners are the accused Nos. 2 to 4. The 3 rd respondent is the victim.
3. The prosecution case in short is that the accused Nos. 1 to 4 have raped the 3rd respondent on different occasions at the house of her uncle before three years of the registration of the crime.
4. The 1st accused is the relative of the victim. The 2 nd accused is the paternal uncle of the victim. The 3 rd accused is the friend of the 2nd accused. The 4th accused is the neighbour of the 2nd accused.
5. Initially, a crime was registered by the Vengara Police
under Section 376 of IPC and Sections 3 read with 4, 5 (l), (m) read with 6 of the Protection of Children from Sexual Offences Act (for short 'the POCSO Act'), on receiving information -:4:- regarding the sexual assault from the Child Line Authorities Malappuram. The victim was sent for medical examination and medical examination was done by a lady medical officer. The statement of the victim under Section 164 of Cr.P.C was also
recorded. The investigating officer who conducted the investigation initially concluded that the accused did not commit any offence punishable under Section 376 of IPC and Sections 3,4, 5(l), (m) read with 6 of the POCSO Act and a report was filed to delete the said Sections and to continue the investigation adding Sections 7 read with 8 of the POCSO Act. Thereafter, the investigation was taken over by another investigating officer and during the said investigation it was disclosed that the 1 st accused committed offences punishable under Sections 448, 342, 354 B, 377, 506 of IPC and Sections 6 read with 5(n) of the POCSO Act and Section 75 of the Juvenile Justice (Care and Protection of Children) Act (for short 'the JJ Act), the 2 nd accused committed offences punishable under Section 377 of IPC and Sections 5(m),
(n) read with 6 of the POCSO Act and Section 75 of the JJ Act, the 3rd accused committed the offences punishable under Section -:5:-
377 of IPC and Section 6 read with 5(l), (m) of the POCSO Act and the 4th accused committed the offences punishable under Section 377 of IPC and Section 6 read with Section 5(m) of the POCSO Act. Necessary reports to that effect were submitted before the learned Magistrate. The investigation is now going on.
6. I have heard Sri.G. Hariharan, the learned counsel for the petitioners, Smt. T.V Neema, the learned Senior Public Prosecutor and the learned counsel for the Victim.
7. The main contention of the petitioners is that the father of the victim, namely Nedumpally Saidalavi, who is the brother of the 2nd petitioner and a known criminal in the locality
is involved in a number of cases including murder case. Since the petitioners did not heed to the demand made by Saidalavi to give evidence in his favour in the murder case charged against him, a false complaint has been made through his daughter regarding sexual assault. I went through the FIS of the victim. There are clear allegations to attract the ingredients of offence punishable under Section 377 of IPC and Sections 5(m), (n) read with 6 of the POCSO Act and Section 75 of the JJ Act against the
-:6:- 2nd accused, Section 377 of IPC and Section 6 read with 5(l), (m) of the POCSO Act against the 3rd accused and Section 377 of IPC and Section 6 read with Section 5(m) of the POCSO Act against the 4th accused. It is true that there is nothing to suggest penetrative sexual assault in the medical report. The allegations as against the petitioners are that they inserted their sexual organ in between the thighs of the victim. Therefore, there cannot be any evidence of penetrative sexual assault. The defence now put forward by the petitioners that the crime was registered at the instigation of the father of the victim, is a matter of evidence. When prima facie case is made out, the jurisdiction vested with this Court under Section 482 of Cr.P.C cannot be invoked. Accordingly, the Crl.M.C is dismissed. Sd/- DR. KAUSER EDAPPAGATH JUDGE kp -:7:- APPENDIX OF CRL.MC 287/2020 PETITIONER ANNEXURES ANNEXURE I TRUE COPY OF THE FIR REGISTERED BY THE 2ND RESPONDENT IN CONNECTION WITH CRIME NO.198/2017 OF VENGARA POLICE STATION. ANNEXURE II TRUE COPY OF THE COMPLAINT DATED 04.10.2017 MADE BY SMT.AYAMMAKUTTY MOTHER OF MR.SAIDALAVI BEFORE THE SUPERINTENDENT OF POLICE, MALAPPURAM. ANNEXURE III TRUE COPY OF THE COMMON ORDER MADE IN ANTICIPATORY BAIL APPLICATIONS NOS.6771/2017, 7059/2017 AND 7145/2017 BY THIS HON'BLE COURT ON 31.05.2017. ANNEXURE IV TRUE COPY OF THE ORDER MADE IN BA NO.6698/2018 IN CRIME NO.200/2018 OF VENGARA POLICE STATION MADE ON 08.11.2019. ANNEXURE V TRUE COPY OF THE ORDER DATED 09.04.2019 ISSUED BY SRI.M.P.ANTONY (MEMBER) OF THE KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHT, THIRUVANANTHAPURAM IN CR P NO.9409/10/C2/2017/KESCPCR.