LAWS(KER)-2019-11-489

ASARUDHEEN S.M. Vs. UNION TERRITORY OF LAKSHADWEEP

Decided On November 13, 2019
Asarudheen S.M. Appellant
V/S
UNION TERRITORY OF LAKSHADWEEP Respondents

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Crime No.5/2019 of Agatti Police Station, Union Territory of Lakshadweep which has been registered for the offences punishable under Secs. 3 (a) r/w 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and Sec.376 of the IPC. It appears that the said case has been registered on 20.05.2019 on the basis of the information received from Rajiv Gandhi Speciality Hospital, Agatti that the minor victim involved in this case aged 17 years was brought to that Hospital and she was found to be pregnant and that the report 14.05.2019 issued by the Hospital would show that the urine pregnancy test has been found to be positive. Further that the date of birth of the minor victim girl is 06.04.2002 as per the birth certificate and therefore, she had only completed the age of 17 years and 1 month as in May, 2019. Further, the prosecution would state that the victim's statement was recorded by a woman police constable under Sec.24 of the POCSO Act. In the said statement, the minor victim girl has stated that she is a plus two student and belonging to Agatti Island and she was brought to the hospital on 14.05.2019 as she felt abdominal pain and when urine was tested and ultra sound scanning was conducted, it was revealed that she was pregnant. She has further stated that the parents had made arrangements to conduct the marriage with the petitioner/accused and that he is responsible for her pregnancy. Accordingly, the prosecution would urge that as the minor victim girl is admittedly a minor at the relevant time, the petitioner has committed the abovesaid offences of penetrative sexual assault and the issue of consent is immaterial for the commission of the offences as the victim is a minor at the alleged time of commission of the offence. The petitioner has been arrested on 11.10.2019 and after his remand, has been under detention since then.

(2.) Sri.P.K.Varghese, learned counsel appearing for the petitioner that there is strong custom and practice among the people of the Muslim community in Lakshadweep, who belongs to notified Scheduled Tribe communities, whereby the 'Nikah' of the proposed bridegroom with the proposed bride would be conducted by both families and the formal solemnisation of the marriage will be conducted later. That in the instant case, the 'Nikah' of the petitioner with the lady victim was conducted on 23.04.2019.

(3.) Further, the learned counsel for the petitioner would point out that the allegations of sexual intercourse and the allegations that the girl is pregnant etc. is absolutely wrong and incorrect and that she had only suffered abdominal pain and that the doctor of the hospital who was not having the exposure to the local culture of the people of Lakshadweep, had reported the matter presumably on the impression that the girl is pregnant. Further that, the victim is studying in plus two course and the families on both sides already taken a firm decision as per the prevailing customs and norms, to solemnize the marriage between the petitioner and the lady victim immediately after she completes her plus two course. Further that, the lady victim's father has sworn to Annexure-I affidavit dated 31.10.2019 stating about the conduct of the 'Nikah' between the petitioner and the victim and also that the marriage between them would be conducted next year immediately after she completes her higher secondary education and further that victim was taken to the hospital as she complained of stomach pain on 14.05.2019. Further, the girl's father would state in his affidavit that he had accompanied the victim and on peripheral examination, the doctor asked whether she had missed the menstrual cycle in the month and she answered in the affirmative and the doctor then told that she is pregnant and had immediately reported the matter to the Police. Presumably, as otherwise he thought that he may be hold up for the offence as per Sec.21 of the POCSO Act. Further that, the girl is not pregnant and she has been discharged from the hospital. It is further stated that the girl's family treated the petitioner/accused as the son-in-law and as the Nikah is already over as per the customary rights of the community and all what remains is the solemnization of the marriage which will be conducted as aforestated and that even the lady victim is now in deep sorrow throughout the day and night and it is affecting her studies. Further, it is stated in the affidavit that the victim girl's family members and the victim deeply desired that the petitioner may be released from his detention without any further delay and further that the girl's father is swearing to Annexure-I affidavit without any threat or coercion etc.