SIVAN NAIR Vs. SUB INSPECTOR OF POLICE

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Crime No.707/2019 of Vilappilshala Police Station, Thiruvananthapuram, which has been registered for offence as per Sections 7 of the Protection of Children from Sexual Offences Act, 2012, which is punishable as per Section 8 thereof. The above said crime has been registered on the basis of the First Information Statement given by the mother of the minor victim girl, now aged 7 years, on 26.10.2019 at about 6.15 p.m. in respect of the alleged incident which is said to have happened on a day in the year 2014.

(2.) The prosecution case in short as revealed from the said F.I. Statement is that the date of birth of the minor victim girl is 17.12.2012 and that earlier the minor victim girl, her sibling and parents were living in the immediate neighbourhood of the residence of the petitioner/accused now aged 75 years, who was residing along with his wife there and that the minor victim girl used to visit the residence of the petitioner at morning time on days on which she was not having school and further that the petitioner has kissed the minor victim girl and touched her private parts. Further it is stated that the petitioner has done the above acts in the year 2014. In the F.I. Statement, it is stated that the above said information has been collected by the victim's mother from the victim. The victim's mother is stated to be working in a Television Channel Company. Nowhere it is stated as to whether the incident in question has happened only on one occasion or whether it has happened more than once.

(3.) The learned counsel for the petitioner would point out that the above said allegations are absolutely false and fabricated and that even going by the admitted case of the de facto complainant, the victim girl's date of birth is 17.12.2012 and so indisputably she has completed only 1 year and 1 month in January 2014 and she could have completed two years in the 2nd week of December, 2014. Further that the victim girl and her family members are never residing the neighbourhood of the petitioner in the year 2014 and they started residing near the petitioner's house only some time in March 2015 or thereafter. Further it is pointed out that it is almost humanly impossible for any child to recollect as to what exactly would have happened at a time when she was hardly one year plus and to reiterate the same after six long years. That when the anticipatory bail application has been argued on behalf of the petitioner before the Special Sessions Court, Thiruvananthapuram, the petitioner's counsel had specifically submitted before the Court about this crucial aspect and also the fact that the victim and her family members are residing near the petitioner's house only from March 2015 onwards. Thereafter, the Police Officer has, very cleverly, taken an additional statement of the victim and has given additional report before Special Court stating that the incident has happened in March 2015, after the victim's family had shifted the residence to the neighbourhood of the petitioner. Further it is pointed out that even if it is assumed only for argument sake that the incidents had happened in the year 2015, then also it is specifically clear that the victim would have been the hardly age of 2 years and two months in March, 2015 and she would have completed the age of three years in the 2nd week of December, 2015 and then also, it is humanly impossible for any child to recollect as to what would have happened when she was hardly the age of two plus and to reiterate the same after five long years. That these crucial aspects have not been taken into consideration by the Investigating Officer or by the Court below and that the Investigating Officer in this case is taking illegal and hasty steps to some or other name the petitioner and he is taking steps to ensure that the petitioner is charged sheeted at any cost etc. Further it is pointed out that the alleged incident is said to have happened in the year 2014 and the F.I.S. and the crime has been lodged as late as on 25.10.2019 and there is delay of more than 5 & frac 12; long years in the lodging of the case and no credible explanation whatsoever has even been remotely offered by the prosecution to justify the long and ominous delay in this regard which would fatally vitiate the impugned criminal proceedings. Even if it is assumed that the incident had happened in the year March 2015 as is now sought to be permitted by the Investigating Officer, there is still delay of about 4 ½ years, which would equally vitiate the impugned criminal proceedings. The learned counsel for the petitioner would place reliance on the decisions of the Apex Court as in Thuliya Kali v. State of Tamil Nadu [AIR 1973 SC 501], State of Andhra Pradesh v. M.M. Madhusoodhana Rao [2008 (15) SCC 582], wherein the Apex Court has dealt with the cardinal principles relating to the delay in registration of F.I.R. It has been held therein that the delay in lodging the F.I.R will more often than not resulting in the embellishment and exaggerations, which is creation of an afterthought. The delay in report not only gets bereft of spontaneity but also the danger of introduction of coloured version, exaggerated on account of the incident or a concocted story as a result of deliberations and consultations, which would cast serious doubts on the very veracity of the prosecution story. Therefore, it has been held that it is highly essential that the delay in lodging of the F.I.R. should be satisfactorily explained by the prosecution. Resultantly, as the substratum of the evidence given by the complainant is found to be unbearable, the prosecution case has to be rejected in its entirety etc. The learned counsel for the petitioner has also pointed out that the petitioner, who is aged 74 years is suffering from serious ailments as is evident from Anneures-A medical records issued by the PRS Hospital, Thiruvananthapuram and Annexure-B treatment certificate issued by the Department of Cardiology of the Govt. Medical College Hospital, Thiruvananthapuram. The learned counsel for the petitioner would also urge that going by the nature of the allegations in this case, the custodial interrogation of the petitioner is not in any manner warranted for effectuating the investigation in this crime and that the petitioner will fully co-operate with the Investigating Officer in the process of the above said interrogation and in the various steps of the investigation process.