ASHARAF Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Annexure-A6 Crime No.644/2019 of Binanipuram Police Station, Ernakulam, registered for offences punishable under Secs.376(2)(d), 376(2)(f) & 376(2)(i) of the Indian Penal Code and Secs.3(b), 4, 5m, 5n, 6, 7, 8, 9l, 9m, 9n, 10, 11 & 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The crime has been so registered on the basis of the First Information Statement given by the mother of the minor victim girl now aged 6 years on 23/10/2019 at about 8 p.m. (crime registered on the same day at 8.45 p.m.), in respect of the alleged incidents which happened for the period from 1/1/2016 to 8/5/2019. The petitioner has been arrested in this case on 21/11/2019 and after his remand, he has been under detention since then.

(2.) The brief of the prosecution case is to the effect that the petitioner/accused now aged 38 years is married to the first informant herein (who is the mother of the minor victim girl now aged 6 years) and the first informant would make various allegations against the petitioner in the abovesaid FIS. The copy of the First Information Statement given by the mother of the victim girl is produced as Annexure-A1. It is alleged therein that about three years back, when the victim girl was hardly aged 3 years, the mother had found that the petitioner had inserted the sheath of the jackfruit seed into the vaginal area of the minor victim girl and when the mother questioned the petitioner, he said that he is doing it only as a joke and he said that he would apologize. Further that, the petitioner used to frequently speak in sexually coloured language. However, that on 8/5/2019, the petitioner had undressed the victim girl and pressed her to his body and given kiss to her face, neck and her genital area. That the victim girl came running to the first informant (mother), without dress and the victim told her mother about the said incident and the mother immediately questioned the petitioner and there occurred altercation between them. Further, the first informant (mother of the victim/wife of the petitioner), then threatened the petitioner that she would ensure that he is way to face the court of law. Further that due to marital disputes, the mother of the victim and the victim had left the petitioner's house on 6/7/2019. Further, Annexure-A2 is the copy of the statement given by the minor victim girl to the police on 23/10/2019. It is mainly in the form of a question-answer format. The victim girl has not said anything about the alleged incident, which is said to have happened about three years back, as narrated by her mother regarding the alleged insertion of the sheath of the jackfruit seed, etc. As regards kissing aspect, the girl has stated an answer to question No.7 that her father used to lick her cheeks, neck and chest, which the girl did not never like. However, a perusal of Annexure-A2 would show that the victim girl has not stated anywhere therein that the petitioner has kissed her genital area, as alleged by the mother. Whereas, she would only say that the petitioner used to press her chest and genital area. Further, she has given a specific answer to question No.25 that the petitioner had pressed her genital area when she was wearing her dresses and not in an undressed stage. Further, she would also say that the petitioner had pressed her genital area with his fingers, etc.

(3.) The learned counsel for the petitioner would point out that the abovesaid allegations are absolutely false and fabricated and are the product of evil mind of his wife, who is the first respondent, who was creating the host of the problems in the petitioner's marital life. The petitioner's mother is an aged lady, who is suffering from stroke and she needed delicate care and attention and the petitioner's wife was adamantly refusing to take care of his mother, which resulted the petitioner having to completely taking over the responsibility of taking care of the mother. Further that the petitioner came to know that his wife was maintaining illicit affair with another man and on a day in February, 2019, the petitioner's wife was caught red handed with a young man in the petitioner's house. Since the petitioner is involved as a teacher imparting religious instructions in a Mosque, the matter was also apprised to the local Jama-Ath authorities. Thereafter, the petitioner's wife has given an undertaking as per Annexure-A4 agreement dtd. 27/2/2019 that no such incidents will be repeated and the petitioner's wife Shejeena has signed in Annexure-A4 agreement and that too in the presence of independent witnesses. Since the petitioner's wife continued with her extremely illegal activities, the petitioner was constrained and was not even looking after her children and his mother, the petitioner was constrained to marry another lady one Noorshia, who is a divorced lady on 1/9/2019. In retaliation to the petitioner's second marriage, the petitioner's wife had filed a false complaint to the SHO, Binanipuram, which led to the registration of Annexure-A5 Crime No.553/2019 of Binanipuram Police Station on 9/9/2019, in which the petitioner has been arrayed as accused for offences as per Secs.323, 341 & 294(b) of the Indian Penal Code, etc. It is immediately after the petitioner's re-marriage on 1/9/2019 and the registration of Annexure-A5 crime on 9/9/2019 that she has now come forward to raise the false allegations as per Annexure-A1 FIS, which led to the registration of the instant Annexure-A6 crime on 23/10/2019. The petitioner would point out that Shejeena was always threatening that she would take the petitioner to the court, as her illicit affair was detected by the petitioner and as she never wanted to look after the children and his mother. Further it is pointed out that the petitioner's wife has clearly stated even in Annexure-A1 FIS that she had threatened the petitioner that she would take him to the court of law.