BY AD v. SRI.E.C.POULOSE

STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA DEVASSY, AGED 60 YEARS, PULICKAL HOUSE, ERUMATHALA P.O., CHOONDY, ALUVA DEENA DEVASSY D/O DEVASSY, AGED 30 YEARS, PULICKAL HOUSE, ERUMATHALA P.O., CHOONDY, ALUVA MERRY AGED 30 YEARS, W/O DEVASSY, PULICKAL HOUSE, ERUMATHALA P.O., CHOONDY, ALUVA DENNY AGE 27 YRS, S/O DEVASSY, PULICKAL HOUSE, ERUMATHALA P.O., CHOONDY, ALUVA BY ADVS. SRI.E.C.POULOSE SMT.BOBBY RAPHEAL.C SMT.ANGELY CHERIAN ADV.SEENA C. - PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl. Rev. Pet. No.454 of 2020 2 P.G. AJITHKUMAR, J. ----------------------------------------------------------- Crl. Rev.pet. No.454 of 2020 ----------------------------------------------------------- Dated this the 31st day of July, 2024

O R D E R In this revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973. The petitioner questions correctness, legality and propriety of the order dated 16.11.2019 of the Additional District and Sessions Judge, Ernakulam (For the trial of cases relating to Atrocities and Sexual Violence against Women and Children) in Crl.M.P. No.800 of 2019, a complaint filed under Section 190 of the Code. That complaint was dismissed under Section 203 of the Code.

Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for respondent Nos.2 to 5.

The petitioner has filed Crl.M.P. No.800 of 2019, seeking to prosecute respondent Nos.2 to 5 for the offence under Section 7 which is punishable under Section 8 of the Protection of Crl. Rev. Pet. No.454 of 2020 3 Children from Sexual Offences Act, 2012 (POCSO Act). The allegation was that the 2nd respondent, who is the father in law of the petitioner sexually assaulted his nine year old daughter. The 3rd respondent is his wife, the 4th respondent is his mother in law and the 5th respondent is his brother in law. It is averred in the complaint were that the victim, after coming back from the house of respondent Nos.2 to 5, behaved indecently to the children of his younger brother, that is, by fondling the penis of the children. The petitioner on querying the victim understood that the 2nd respondent behaved to her in such a manner with a sexual intent. He thus realised that the 2nd respondent committed the offence of sexual assault against the victim and respondent Nos.2 to 5 connived with that.

The trial court recorded the statement of the petitioner on oath, and the victim. CW1 is the victim. After having a voire dire test, the victim was examined in court. It is seen that an audio clip was proposed by the petitioner as evidence. The said video clip was played and heard by the learned Special Judge. After considering the said materials, the trial court held that materials are insufficient to proceed against respondent Nos.2 to 5. Resultantly, the complaint was dismissed. Crl. Rev. Pet. No.454 of 2020 4

The petitioner gave a statement as CW2. On a perusal of his statement, it can be seen that he did not have any direct knowledge about the alleged incident of sexual assault. He inferred from the behaviour of her daughter-CW2 that she was subjected to sexual assault by respondent No.2. CW2, the victim, stated before the Special Judge that she was never subjected to any sort of assault, much less a sexual assault by any one among respondent Nos.2 to 5. She totally denied the allegations levelled against respondent Nos.2 to 5. The observation of the learned Special Judge is that the audio clipping did not contain any conversation sufficient to establish the alleged offence. Thus, the petitioner could not produce any materials before the court to substantiate even prima facie that any of respondent Nos.2 to 5 had committed an offence of sexual assault as defined in Section 7 of the POCSO Act. Based only on the inference of the complainant, no prosecution of respondent Nos.2 to 5 can be initiated. It is seen that there is a matrimonial dispute between the petitioner and respondent No.3. When the parties were at loggerheads, the reliability of the statement of the petitioner is weakened further. In the said circumstances, I am of the view that the trial Crl. Rev. Pet. No.454 of 2020 5 court rightly held that there is total lack of materials to proceed against respondent Nos.2 to 5 for the allegations set forth in the complaint. I find no reason to interfere with that findings. Therefore, this revisions petition lacks merits. It is accordingly dismissed. SMF Sd/- P .G. AJITHKUMAR JUDGE