RAJEEVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Crime No.218/2019 of Melparamba Police Station, Kasargode, registered for offences punishable under Sec.377 of the Indian Penal Code and Secs.7 and 8 of the Protection of Children from Sexual Offence (POCSO) Act, 2012. The abovesaid crime has been registered on the basis of the First Information Statement given by the minor victim boy on 23.09.2019 at about 6.10 p.m., in respect of the alleged incidents which happened on the previous day (22.09.2019) at about 11 a.m. The petitioner has been arrested in this case on 26.09.2019 and after his remand, he has been under detention since then.

(2.) The brief of the prosecution case is that the minor victim boy aged 13 years was given a lift in the scooter driven by the petitioner/accused aged 56 years on 22.09.2019 at about 11 a.m. and thereafter, the petitioner had taken him to an isolated house and that he had pressed his chest and then kissed on his lips, etc.

(3.) The learned counsel for the petitioner would point out that the abovesaid allegations are false and fabricated and further that none of the factual allegations in the FIS would even remotely fulfil any of the minimal ingredients of the offence as per Sec.377 of the IPC. The learned counsel for the petitioner would also point out that the petitioner is carrying out tile laying contract works and that he had got a work executed for the minor victim boy's uncle's house and there were outstanding dues to be paid by the said relative of the minor victim boy and that the petitioner has been falsely implicated and further that the place of the alleged incidents in this case is the abovesaid house under construction of the minor victim boy's uncle. That there are no allegations that the accused has indulged in anal penetrative assault or that he had placed his genital organ between the thighs of the victim or that he has done any act like placing the organ between the cleavage of the buttocks, etc., so as to involve enveloping of the visiting organ by the visited organ or that the accused has done oral sex, etc. and that the offence as per Sec.377 of the IPC is not in any manner disclosed this case. Further that, even going by the admitted allegations, it would only involve non-penetrative sexual assault, as envisaged in Sec.7 of the POCSO Act, which is punishable by Sec.8 thereof. It is urged by the learned counsel for the petitioner that as the petitioner has already suffered detention for the last 40 days, his continued incarceration is not justified and proper, taking into account the nature of the allegations disclosed in this case and that this Court may order to release him on regular bail, subject to any strict conditions.