AJITHKUMAR G. Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as accused No.2 among the two accused in the instant crime No.331/2014 of Punnapra Police Station, Alappuzha for offences punishable under Sections 376(n) of the IPC, Sections 3(2) read with Section 4 of the POCSO Act, 2012 and Sections 3(1)(xi) , 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act , 1989. The police after investigation has duly filed the impugned Anx.A1 final report/charge sheet in the above said crime No.331/2014 of Punnapra Police Station, Alappuzha and after commuted proceedings the case is now pending as Sessions Case S.C.No.1010/2014 on the file of the Additional District & Sessions Court notified to deal with POCSO cases, Alappuzha. The charges have also been duly framed in this case as per Anx.A5 on 19.01.2019. The petitioner seeks quashment of the impugned criminal proceedings mainly on the ground that subsequently during the pendency of the present proceedings, the petitioner/accused has married the 2 nd respondent-lady victim and that the lady victim has no further issues with the petitioner and that she does not wish to continue with the prosecution proceedings any further. Further it is also submitted on behalf of additional respondent No.2 (lady victim) that her marriage with the petitioner has been duly solemnized as can be seen from Anx.A2 marriage certificate dated 22.09.2017 issued by the Local Marriage Registrar and that a girl child has also been born to her in her relationship with the petitioner/accused, etc. In that regard petitioner mainly place reliance on the decisions of this Court in cases as in Freddy @ Antony Francis & Ors. v. State of Kerala & Anr. [2017 KHC 344 = 2018 (1) KLD 558] and Denu P.Thampi v. Ms.X [2019 (3) KHC 199 = 2019 (2) KLT 996].

(2.) Heard Sri.S.Sanal Kumar, learned counsel appearing for the petitioner (A2), Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R1-State and Sri.M.R.Arunkumar, learned counsel appearing for contesting respondent No.2 (lady victim). The allegations/charges framed on as per Anx.A5 dated 19.01.2019 are as follows: Firstly, accused No.1, had committed rape on the prosecutrix (the CW1), who was a juvenile belonging to a schedule caste community, repeatedly at various places including in room No.107, MKT Providence Lodge, Ward No.V, Purakkadu Grama Panchayat on 07.05.2013 between 12.30 P.M and 2.00 P.M and on 08.07.2013 between 9.30 A.M and 5.30 P.M after made her believe that he would marry her and thereafter putting her under fear that she would be blackmailed and thereby committed the offence punishable under Section 376(2)(n) of the IPC. Secondly, 2nd accused had committed rape on the said CW1 repeatedly at several places including in the House bearing door No.12/120, Nedumudi Grama Panchayat and in the said Providence lodge on 14.11.2013 between 10.15 A.M and 5.45 P.M and as a result of that she became pregnant, and thereby committed an offence punishable under Section 376(2)(n) of the IPC. Thirdly, the above said accused Nos.1 and 2 had committed gang rape on the said CW1 at the said places and time, and thereby committed an offence punishable under Section 376 D of the IPC. Fourthly, the above said accused Nos.1 and 2 had committed aggravated penetrative sexual assault on the said CW1 repeatedly and she became pregnant, and thereby committed the offences punishable under Sections 5(1) , 5(j)(ii) & 5 (g) r/w Sec.6 of the Protection of Children from Sexual Offences Act, 2012. Lastly, the above said accused Nos.1 and 2, by their aforesaid acts had committed an offence punishable under Section 3(2) (v) of the SC/ST (POA) Act, 1989, during the course of the same transaction within the cognizance of the Court.

(3.) Going by the deposition of PW1 (R2 herein/victim) as per Anxs.A3/ A6, she would say that she was born on 21.03.1995 and that the entry in her school certificate that she was born in August 1995 is a mistake. Anx.A2 is the marriage certificate issued by the Local Marriage Registrar regarding the solemnization of marriage between the petitioner/accused and the 2nd respondent and in Anx.A2 marriage certificate, it is inter alia stated that the date of birth of 2 nd respondent herein is 21.05.1996. This Court had specifically directed the learned Prosecutor as well as the Court below to appraise this Court as to what exactly is the date of birth of the 2nd respondent as per the prosecution case.