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2025 DIGILAW 2036 (KER)

Shan Muhammed, S/o. Muhammed v. State Of Kerala

2025-07-23

G.GIRISH

body2025
ORDER : G.GIRISH, J. The 4 th accused in S.C No.1168/2021 on the files of Additional Sessions Court (POCSO), Muvattupuzha, has filed this petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 to quash the proceedings against him in the said case. The offences charged against him, along with the other three accused, are under Sections 450 , 354-D,120B, 109, 201, 212, 506(ii), 376(2)(h), 376(2)(n), 313, 363, 370 read with Section 3 4 I.P.C and Sections 4 r/w 3(a), 3(b) and 3(c), 6 r/w 5(j)(ii) and 5(q), 8 r/w 7, 9(l), 11(iv) r/w 10, 21 r/w 19(1) of Protection of Children from Sexual Offences Act, 2012 and Section 67B(b) of IT Act, 2000 and Section 3 (4)(a) of the Medical Termination of Pregnancy Act, 1971 . 2. The prosecution case is that the petitioner abetted the offences of rape and penetrative sexual assault perpetrated by the first accused upon the de facto complainant/third respondent. It is also alleged that he committed criminal conspiracy to cause miscarriage, destruction of evidence and trafficking of a female child for sexual exploitation. 3. The prosecution case, in conspectus, is as follows: The first accused managed to win over the intimacy and love of the de facto complainant, a girl aged 16 years, by getting acquainted with her through social media. On 09.12.2020 at about 11:45 p.m, the first accused came to the premises of the house of the de facto complainant outside her bedroom and resorted to sexual overtures by getting hold of her hands, breasts and genitals through the window of that room. Thereafter, he obtained the naked videos of the de facto complainant by threatening her that she would be done away with, if she did not co-operate. On 20.03.2021, the first accused entered into the bedroom of the de facto complainant at about 12:00 midnight, after getting the doors opened through the de facto complainant by subjecting her to the threat that her naked videos would be circulated in social media. On that night, the first accused committed penetrative sexual assault upon the de facto complainant at the bedroom, and impregnated her. The pregnancy of the de facto complainant was confirmed by the first accused with a pregnancy testing card purchased from a medical store belonging to CW30. On that night, the first accused committed penetrative sexual assault upon the de facto complainant at the bedroom, and impregnated her. The pregnancy of the de facto complainant was confirmed by the first accused with a pregnancy testing card purchased from a medical store belonging to CW30. Thereafter, he purchased abortion pills from the above medical store and administered the same to the de facto complainant on 25.04.2021 and 27.04.2021. In the meanwhile, he again resorted to penetrative sexual assault upon the de facto complainant on 20.04.2021, 25.04.2021 and 27.04.2021. The first accused purchased the abortion pills pursuant to the conspiracy with the 4th accused (petitioner herein). The first accused confirmed the abortion by testing the urine of the de facto complainant at DDRC Lab, Muvattupuzha on 05.05.2021, and it was informed to the 4th accused. The 4 th accused, who is the District General Secretary of Youth Congress, suppressed the above criminal acts committed by the first accused and conspired with him to save him from criminal prosecution. On 31.05.2021, the first accused took the de facto complainant in the car belonging to the 4th accused to the DDRC Lab, Muvattupuzha and conducted the blood test to confirm that she is not pregnant. While returning to the house of the de facto complainant in the car of the 4th accused, she was threatened by the 4th accused that if she disclosed the incidents to anybody, she would be done away with by making use of his political influence. 4. The incident involved in this case came to light pursuant to the disclosure made by the de facto complainant to CW2, who is the wife of the maternal uncle of the de facto complainant. Later on, the First Information Statement of the de facto complainant was recorded on 02.06.2021, by a Woman Civil Police Officer in the presence of CW2 at the residence of CW6, a KELSA Volunteer. On the same day, the statement of the de facto complainant was recorded by the Judicial First Class Magistrate Court-I, Kothamangalam. Thereafter, the statement of the de facto complainant was recorded on multiple occasions by CW67, a Woman Grade ASI, associated with the Crime Branch. After the completion of the investigation, the final report has been filed against four accused alleging the commission of the same offences as stated above in paragraph No.1. 5. Thereafter, the statement of the de facto complainant was recorded on multiple occasions by CW67, a Woman Grade ASI, associated with the Crime Branch. After the completion of the investigation, the final report has been filed against four accused alleging the commission of the same offences as stated above in paragraph No.1. 5. In the present petition, the petitioner/4th accused would contend that he is totally innocent and that he has been falsely implicated in this case. According to the petitioner, the allegations are made against him under political influence to defame him in public since he is actively involved in the Youth Wing of a political organisation. The petitioner would state that, he was having no connection with the first accused, apart from the fact that the first accused happened to be his driver for a brief period. 6. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala. 7. As already stated above, the sexual assault upon the de facto complainant which resulted in this crime commenced on 09.12.2020 when the first accused allegedly came near the bedroom of the de facto complainant at about 11:45 p.m and resorted to sexual overtures by getting hold of her body parts through the window of the bedroom. Thereafter, the first accused is alleged to have committed penetrative sexual assault upon the de facto complainant in the night of 20.03.2021 at her bedroom into which he caused his entry by getting the doors opened by the de facto complainant, by subjecting her to the threat that her nude videos would be published in social media. The first accused is said to have continued the above penetrative sexual assault upon the de facto complainant on 20.04.2021, 25.04.2021 and 27.04.2021. In the meanwhile, the de facto complainant is said to have informed the 1st accused that she was pregnant. Thereupon, the 1st accused is alleged to have administered abortion pills to the de facto complainant on 25.04.2021 and 27.04.2021. To confirm whether the abortion is successful, the 1st accused is said to have tested the urine of the de facto complainant at DDRC Lab, Muvattupuzha. It is at this stage that the role attributed to the petitioner herein would commence. To confirm whether the abortion is successful, the 1st accused is said to have tested the urine of the de facto complainant at DDRC Lab, Muvattupuzha. It is at this stage that the role attributed to the petitioner herein would commence. It is alleged that the above urine test was conducted with the knowledge and concurrence of the accused/4th accused, and that the petitioner had suppressed the above aspects. However, apart from mere allegations stated in the above regard in the Final Report, there is absolutely no material placed by the Investigating Agency to substantiate the involvement of the petitioner at any time before 31.05.2021. 8. It is pertinent to note that in the First Information Statement forming part of Annexure A, the role attributed to the petitioner/4th accused by the de facto complainant is that he was also present in the car in which the 1st accused took her to the DDRC Lab at Muvattupuzha on 31.05.2021 for conducting the blood test to confirm whether her pregnancy is aborted. Apart from a casual statement in the above regard, nothing has been stated in the First Information Statement about the involvement of the petitioner in the acts done for causing miscarriage of the pregnancy of the de facto complainant. On the same day (02.06.2021) when she gave statement to the learned Magistrate, improvements were made in respect of the role of the petitioner/4th accused by saying that the 4th accused had talked to her over the phone of the 1st accused and told her that it has to be checked whether the information which she conveyed to the 1st accused about her pregnancy was correct. It is further stated by the de facto complainant to the learned Magistrate that after the confirmation in the blood test that she was not pregnant, the petitioner/4th accused again called her over the mobile phone of the 1st accused and informed that since the results are negative, there are no issues, and that she need not reveal those aspects to anybody else. When the de facto complainant is said to have replied to the petitioner that she had informed about the incident to her aunt, the petitioner is alleged to have asked her over phone that she shall not disclose about his involvement in this issue. When the de facto complainant is said to have replied to the petitioner that she had informed about the incident to her aunt, the petitioner is alleged to have asked her over phone that she shall not disclose about his involvement in this issue. Thus, it could be seen that the version of the de facto complainant in her First Information Statement as well as the statement given to the learned Magistrate about the involvement of the petitioner/4th accused is that he was present in the car when the 1st accused took her to the DDRC Lab, Muvattupuzha, on 31.05.2021 for conducting the blood test to confirm the success of abortion, and that the petitioner had talked to her over phone about the above process done on 31.05.2021 and asked her not to disclose his involvement in that matter. Nowhere in the above statements, the de facto complainant had stated that the petitioner was having any role in procuring abortion pills or in conducting the urine test on 05.05.2021 to ascertain whether the abortion has effected. 9. In the Further Statement given by the de facto complainant to the police on 07.06.2021, she had stated that the 1st accused went to the DDRC Lab on 05.05.2021 in the car of the petitioner/4th accused for conducting the urine test. However, there is absolutely nothing stated as to how she got the information in the above regard. The conversation over phone said to have been made on 31.05.2021 with the petitioner/4th accused, is reiterated in the above statement of the de facto complainant. However, she added in the above statement that the petitioner/4th accused deboarded from the car at Market Road, and that he did not accompany them to the laboratory. She further added that the petitioner/4th accused boarded the car during their return trip and threatened her that if she disclosed the incident to anybody else, she would be eliminated. The further allegation raised by the de facto complainant in the above statement against the petitioner is that he had warned her from further disturbing the 1st accused for what all happened. The de facto complainant had given additional statements to the police on 07.07.2021, 22.10.2022, 12.04.2023 and 13.09.2023. The further allegation raised by the de facto complainant in the above statement against the petitioner is that he had warned her from further disturbing the 1st accused for what all happened. The de facto complainant had given additional statements to the police on 07.07.2021, 22.10.2022, 12.04.2023 and 13.09.2023. In all the above statements, the role attributed to the petitioner/4th accused is the assistance rendered to the 1st accused by providing his car to take the defacto complainant to the DDRC Lab on 31.05.2021 for conducting the blood test, and the alleged threat made by him against disclosing the incident to others. 10. It is also pertinent to note that the statement given by CW30, who is the owner of the Medical Shop from which the 1st accused allegedly purchased the abortion pills and pregnancy card, does not reveal that the petitioner/4th accused was having any involvement at that time. Nor does the statements of CW17, CW18, CW20 and CW21, who are the staff associated with DDRC Lab, Muvattupuzha, contain anything to show that the petitioner had assisted the 1st accused in the urine test conducted on 05.05.2021 or the blood test conducted on 31.05.2021. It is also apparent from the relevant records that the CCTV visuals collected by the Investigating Agency do not support the presence of the petitioner/4th accused at the premises of the above said laboratory, along with the 1st accused, either on 05.05.2021 or on 31.05.2021. 11. The only link to connect the petitioner/4th accused with the crime involved in this case is that the 1st accused had used the car belonging to the petitioner for taking the defacto complainant on 31.05.2021 to conduct the blood test at the laboratory in Muvattupuzha. As regards the threat alleged to have been made by the petitioner/4th accused to the defacto complainant on 31.05.2021 against disclosing the incident to anybody else, it could be seen that the de facto complainant had made gradual improvements in her statements given to the police to implicate the petitioner in the crime, insofar as it relate to the above threat, and attempt made by him to conceal the offence. However, it is not possible to ignore the fact that the de facto complainant did not make any such allegation of threat from the petitioner/4th accused when she gave the statements to the learned Magistrate. However, it is not possible to ignore the fact that the de facto complainant did not make any such allegation of threat from the petitioner/4th accused when she gave the statements to the learned Magistrate. Thus, the only conclusion which could be drawn, even if the prosecution records are accepted as such, is that the petitioner/4th accused who became aware of the incident on 31.05.2021, did not disclose the same to the authorities concerned for initiating action against the first accused. The final report and the accompanying records relied on by the prosecution do not give the indication that the first accused committed the sexual assault upon the de facto complainant on 09.12.2020, 20.04.2021, 25.04.2021 and 27.04.2021 with the knowledge or connivance of the petitioner/4th accused. Nor could it be said that before 31.05.2021, the petitioner/4th accused was aware of the incident. As regards the allegation of giving assistance to the first accused for causing miscarriage of the pregnancy of the de facto complainant, it has to be stated that even as per the prosecution case, the abortion was over by 05.05.2021. If that be so, it is not possible to fasten the petitioner/4th accused with the criminal liability of providing assistance to the first accused in carrying out the abortion, by his act of providing his car for taking the de facto complainant to the laboratory on 31.05.2021. 12. The three essential requirements to be brought out for slapping the offence of abetment upon a person are (i) he instigated another person to do the thing which is abetted, or (ii) he engaged with one or more other person or persons in any conspiracy for doing that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing, or (iii) he intentionally aided, by an act or omission, the doing of that act. As far as the present case is concerned, none of the above requirements of instigation, conspiracy or intentional aiding the commission of crime, on the part of the petitioner/4th accused, could be discerned from the prosecution materials. 13. It is true that the investigating agency has garnered evidence to show that the petitioner/4th accused and the first accused frequently contacted each other over their cell phones for a long period which covered the period when the incidents involved in this case took place. 13. It is true that the investigating agency has garnered evidence to show that the petitioner/4th accused and the first accused frequently contacted each other over their cell phones for a long period which covered the period when the incidents involved in this case took place. But, that cannot be taken as a reason to connect the petitioner with the offence of abetment of the crime or involving in the criminal conspiracy for the commission of the crime in the absence of any material to show that any of the above conversations pertained to the sexual assault by the first accused upon the de facto complainant. Since it is stated that the first accused had worked as the driver of the petitioner over a certain period, it cannot be said to be unusual or suspicious if the petitioner had the occasion to contact the first accused over phone during any period which may coincide with the period of commission of this crime. 14. Anyway, since the petitioner is said to be a politician actively involved in public affairs, the allegation about his failure to report the incident to the law enforcing agencies, cannot be ignored. If the contention of the prosecution that the petitioner had provided his car to the first accused to take the de facto complainant to the laboratory on 31.05.2021, is correct, then it could be concluded that he became aware of the offence committed by the first accused on that day. The law requires the petitioner to give information to the police about the commission of the crime, which he is said to have been aware of on 31.05.2021. The omission on the part of the petitioner to report the crime to the law enforcing agencies could be termed as an offence punishable under Section 21 of the POCSO Act. Thus, it has to be stated that the only offence made out as against the petitioner/4th accused from the prosecution records is under Section 21 read with Section 19 (1) of the POCSO Act. Accordingly, I find that the petitioner/4th accused is liable to be prosecuted for the commission of the offence under Section 21 read with Section 19 (1) of the POCSO Act. All the other offences attributed against him in the final report are liable to be quashed for the reasons stated in the foregoing discussions. Accordingly, I find that the petitioner/4th accused is liable to be prosecuted for the commission of the offence under Section 21 read with Section 19 (1) of the POCSO Act. All the other offences attributed against him in the final report are liable to be quashed for the reasons stated in the foregoing discussions. In the result, the petition stands allowed in part as follows: i) All the offences except the offence under Section 21 read with Section 19 (1) of the POCSO Act attributed to the petitioner/4th accused in the final report filed in Crime No.210/2022 of Thiruvananthapuram CBPS (FIR No.473/2021 of Pothanikkad Police Station), are hereby quashed. ii) It is made clear that the prosecution against the petitioner/4th accused could be continued in connection with the commission of the offence under Section 21 read with Section 19 (1) of the POCSO Act