K.RAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Crime No.378/2019 of Koodal Police Station, Pathanamthitta District, which has been registered for offences punishable under Secs.376AB, 376(2)(i), 376(2)(n) of the I.P.C , Secs.4, 3, 8 & 7 of the POCSO Act and Secs.3(1)(w)(i) & 3(2)(v) of the SC/ST (POA) Act, as amended. The crime has been registered at the instance of the FI statement given by the mother of the victim girl, aged, 6 years, on 13.1.2019 at about 4:40 p.m. in respect of the alleged incidents happened for the period from 1.10.2018 to 14.12.2018. The petitioner has been arrested in this case on 27.11.2019 and after his remand he is under detention since then.

(2.) The brief of the prosecution case in short is that the petitioner, an elderly senior citizen aged 75 years and his wife are the immediate neighbours of the minor victim girl, aged 6 years, who is residing there along with her parents. Further that on 14.12.2018, when the mother of he minor victim girl was coming through the nearby property, she had seen the petitioner standing very closely to the minor victim girl in an unnatural and suspicious manner and later the mother questioned the victim girl and she showed signs as if the petitioner was engaged in sexual activity and later the mother could know that on 3 or 4 occasions the petitioner used sexual assault on the minor victim girl by touching his genital part on the genital part of the minor victim girl. In the FI statement, the mother of the victim girl has stated that incidents of this nature was occurred about 3 times including on 14.12.2018 for the period between 1.10.2018 to 14.12.2018. That initially the parents of the minor victim girl did not initiate any proceedings as they had high regard for the petitioner and his family members and later the teacher intimated the matter to the child line which later led to the submission and registration of the FIR, etc. According to the prosecution, the matter was initially intimated to the child line by a teacher in the nearby Anganwadi where the victim had earlier studied.

(3.) The learned counsel for the petitioner would point out that the abovesaid allegations are false and baseless and the allegations are fabricated at the instigation of the abovesaid teacher of the Anganwadi. That the petitioner's daughter, aged 33 years, is suffering from mental disability as can be seen from Anx-A2 medical certificate and out of the concern for children, the petitioner and his wife had given 3 cents of land for the establishment of Anganwadi. That the petitioner could later realise that the abovesaid teacher of the Anganwadi was taking away the food items from the Anganwadi, which are meant for the children there and she also realised that the petitioner came to know of it. Further that, as the petitioner donated 3 cents to the Anganwadi, the said teacher has also demanded that the petitioner should give her some land which the petitioner has refused and it is on account of that she had instigated the victim and her mother to make the instant false allegations. Further that, even going by the prosecution, the complaint was given by the said teacher to the child line. Very crucially it is argued that the initial incident was happened on 1.10.2018 and the second incident on 14.12.2018 was even said to be seen by the victim's mother and that the FI statement in this case has been lodged as late as on 13.4.2019 and the long delay of 4 months is not even remotely explained by the prosecution in any manner. Further that it is pointed out that even according to the mother of the victim girl she came to know about the alleged incident on 14.12.2019 and there is no proper reason for the long delay of 4 months in lodging of the instant crime. Thus it is argued that the long and unexplained delay would fatally vitiate the impugned criminal proceedings and the petitioner may be released on regular bail subject to any stringent conditions. It is also submitted that the petitioner is aged more than 74 years and is suffering from old age ailments as can be seen from Anx-A3 medical certificate issued by Super Speciality Hospital, which shows that the petitioner is suffering from serious disc compression and that the petitioner's wife is also suffering from various old age ailments and there is none to look after her and her daughter, aged 33 years, is suffering from mental disability as can be seen from Anx-A2 medical certificate, etc., and this Court may grant regular bail to the petitioner. Further the petitioner also submitted that even going by the admitted allegations, none of the vital ingredients of penetrative sexual assault are not made out in this case and the mere allegations that the accused has made his genital part touch the genital part of the victim, will not satisfy the broadened definition of rape as per Sec.375 of the I.P.C and penetrative sexual assault in terms of Sec.3 of the POCSO Act.