AYOB K. Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner has been arrayed as the sole accused in the instant crime No. 518/2019 of Pazhayangadi Police Station, Kannur, which has been registered for offences punishable under Sections 377 and 506 of the IPC and Sections 7 and 8 of the Protection of Children from Sexual Offences Act, 2012, on the basis of the First Information Statement given by the minor victim boy on 02/10/2019 at about 9 pm in respect of the alleged incidents which happened on 28/09/2019 at about 3 pm. The petitioner herein has been arrested on 03/10/2019 in this case and after his remand has been under detention since then.

(2.) The brief of the prosecution case as made out in the allegations in the FIS is that the petitioner, aged 65 years is a labourer living in the immediate neighbourhood of the residence of the minor victim boy aged 13 years and that on 28/09/2019, at about 3 pm, when he was in Pazhayangadi Railway Station along with his friends, the petitioner had come there and told him that the boy's mother had told that the petitioner should bring the minor victim boy back to their residence and the victim Bail Appl.No.7634 OF 2019 boy had thus accompanied the petitioner where he had taken him to an isolated place and had sexually abused and assaulted the minor victim boy and thereby he has committed the above said offences.

(3.) The counsel for the petitioner would point out that the above said allegations are false and baseless and further that a reading of the FIS in this case would make it clear like daylight, that the minor victim boy has not made any allegation that the petitioner had placed his genital organ between his thighs or that he has done any other acts like oral sex or that he has done any of the said acts like placing the genital organ between the cleavages of the buttocks or had oral sex with him etc. so as to bring out the elements of penetrative sexual assault against the order of nature as envisaged in Section 377 of the IPC and that on the other hand, the minor victim boy's allegation is to the effect that petitioner had laid over him and that the petitioner's genital organ was made to touch the boy's genital organ and that none of the allegations in the said FIS would disclose any of the ingredients of Section 377 of the IPC and that is why, the Police has consciously excluded the offence as per Section 3 and 4 0f the POCSO Act, which deals with penetrative sexual assault and has only added offences as per Sections 7 and 8 of the POCSO Act, which deals with non-penetrative sexual assault. That in spite of this fact, the Police has wrongly and misleadingly mentioned in column No.10 of the FIR, as well as in para 1 of Bail Appl.No.7634 OF 2019 the remand report, that the petitioner had placed his genital organ between the thighs of the victim boy so as to implicate the petitioner for the offence of section 377 of the IPC which is not actually made out in the FIS of the minor victim boy. Further that the minor victim boy's father has been involved in a crime for obstructing the duties of Excise officials who raided his house suspecting drugs and the minor victim boy's father wrongly suspects that the said raid has been conducted by the excise team based on the information given by the petitioner and that the said raid has been conducted in April 2019 and that it is only to wreak vengeance on the petitioner, that the minor victim boy's parents has falsely instigated the boy to make the instant false allegations against the petitioner.