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2025 DIGILAW 925 (KER)

Joy P, S/o. Late Pappy v. State Of Kerala

2025-04-09

A.BADHARUDEEN

body2025
ORDER : A. BADHARUDEEN, J. The sole accused in S.C.No.787/2020 on the files of Special Court for the trial of offences under the Protection of Children from Sexual Offences Act (`POCSO Act’ for short), Ernakulam, has filed this Criminal Miscellaneous Case (`Crl.M.C’ for short) under Section 482 of the Code of Criminal Procedure seeking to quash Annexure A1 final report in the above case arising out of Crime No.611/2020 of Elamakkara Police Station, Ernakulam City. 2. Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant and the learned Public Prosecutor. Perused the records placed along with this Crl.M.C and the case diary produced by the learned Public Prosecutor. 3. The prosecution case is that the accused with intention to sexually assault the minor girl victim, aged 9 years, so as to satisfy his lust, at about 15.30 hours on 14.10.2020 placed his head on the breast of the minor child and fondled on the chest. The further allegation is that he made attempt to touch on the vagina of the minor child by inserting his hands inside her panties. On the above premise, the prosecution alleges commission of offences punishable under Section 9(m) r/w 10 of the Protection of Children from Sexual Offence Act, 2012 (`POCSO Act’ for short) and Sections 354A(1)(i) and 354A(2) of the Indian Penal Code (`IPC’ for short). 4. The learned counsel for the petitioner canvassed quashment of the proceedings by arguing that when the bail application of the petitioner was considered by this Court itself, the defacto complainant, who is the father of the victim, appeared through counsel and submitted that the child gave such a statement because of some misunderstanding and accordingly bail was granted to the petitioner. It is also submitted that in tune with the said submission, now the father of the victim filed an affidavit to quash the proceedings on affirming that the matter has been compromised and settled. 5. Apart from that, it is submitted by the learned counsel for the petitioner that the petitioner is a senior citizen, aged 74 years, living along with his son and grandchildren. According to him, on the date of occurrence, the minor child came to the house of the petitioner to play with his elder granddaughter and at that time the petitioner was sitting at the veranda of the house with his younger granddaughter, aged 6 months. According to him, on the date of occurrence, the minor child came to the house of the petitioner to play with his elder granddaughter and at that time the petitioner was sitting at the veranda of the house with his younger granddaughter, aged 6 months. Soon the elder granddaughter of the petitioner wanted to take a snap along with the minor child. Accordingly a photo was taken by his elder granddaughter and now the allegations are stemmed from the overt acts in connection with the photographing. Based on Annexure A2 photograph, it is submitted that the petitioner had no intention to sexually molest the minor child even though the minor child complained of sexual molestation to her parents. According to the learned counsel for the petitioner, on hearing the shocking news the petitioner along with his son went to the house of the victim. But unfortunately the petitioner was brutally manhandled by the father of the victim. 6. The defacto complainant, who is the father of the minor child, conceded quashment on the ground of settlement. 7. The learned Public Prosecutor strongly opposed quashment of this case, acting on the affidavit, where the ingredients to attract the offences alleged are made out, prima facie. The learned Public Prosecutor opposed settlement on emphasizing the statement of the victim recorded by the police as well as her 164 statement to contend that the offences are, prima facie, made out warranting trial. 8. In this matter, crime was registered on the basis of the first information statement given by the father of the minor child. As per the first information statement, it was alleged that at about 3.30 hours on 14.10.2020 the minor child went for cycling in front of the house of the accused. While so, the elder granddaughter of the accused called the minor child to have a snap with the younger granddaughter of the accused. Later a photograph was taken, after keeping the younger granddaughter on the lap of the accused and placing the minor child on the right side of the accused and at this juncture the accused sexually molested her. 9. The police recorded the 164 statement of the victim as on 16.10.2020 and in the statement the victim stated that while the photo was taken, the accused placed his head on her chest and done something. Then the accused attempted to put his hand inside the panties. 9. The police recorded the 164 statement of the victim as on 16.10.2020 and in the statement the victim stated that while the photo was taken, the accused placed his head on her chest and done something. Then the accused attempted to put his hand inside the panties. Then she ran away to her house and informed her parents. In the 161 statement recorded by the police, the minor girl (victim) stated that the accused placed his head on the chest of the minor child and fondled on the chest, then he put his finger inside her panties and attempted to touch on her vagina. 10. Section 9 of the POCSO Act deals with aggravated sexual assault and Section 9(m) deals with commission of sexual assault on a child below 12 years. Section 10 provides for punishment for the offence defined under Section 9 of the POCSO Act. Section 7 of the POCSO Act defines sexual assault and it has been provided that, whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. In the instant case, it is discernible that the accused placed his head on the breast of the minor child and also fondled on the chest. Thereafter he put his finger inside the panties of the child victim and attempted to touch on her vagina. Therefore, it could not be held that the offence under Section 9(m) r/w 10 of the POCSO Act is not made out, prima facie. Similar is the situation as regards to the offences under Sections 354A(1)(i) and 354A(2) of IPC are concerned. 11. In fact, serious offences of rape, murder as well as offences under the POCSO Act could not be settled or compromised. Therefore, an affidavit filed by the defacto complainant, who is the father of the child victim, or the victim herself conceding quashment on the ground of settlement/compromise could not be considered, as the same is not legally permissible. 12. On merits also, quashment prayer is liable to fail since, prima facie, case is made out warranting trial, as argued by the learned Public Prosecutor. 13. 12. On merits also, quashment prayer is liable to fail since, prima facie, case is made out warranting trial, as argued by the learned Public Prosecutor. 13. In view of the matter, the Crl.M.C is liable to fail and is accordingly dismissed. 14. Interim stay, if any, granted shall stand vacated. Registry is directed to forward a copy of this order to the jurisdictional court for information and further steps.