Kerala High Court
Abdul Kareem vs State Of Kerala on 30 September, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 30TH DAY OF SEPTEMBER 2019 / 8TH ASWINA, 1941
Crl.MC.No.6036 OF 2019(D)
CRIME NO.815/2019 OF Thrikkunnappuzha Police Station , Alappuzha
PETITIONER/ACCUSED:
ABDUL KAREEM,AGED 43 YEARS
S/O.MAITHEEN KUTTY, CHALUVILA VEEDU, PUNNALA P.O.,
PATHANAPURAM, KOLLAM.
BY ADVS.
SRI.K.R.VINOD
SMT.M.S.LETHA
KUM.K.S.SREEREKHA
SRI.NABIL KHADER
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, KOCHI-682 031.
2 MUHAMMED BADUSHA,
AGED 19 YEARS
S/O.MUHAMMED BASHEER, KANNATTU VADAKKETHIL, PANOOR,
THRIKKUNNAPUZHA, ALAPPUZHA DISTRICT, PIN-690 515.
R2 BY ADV. SMT.P.V.SOBHANA
R2 BY ADV. SMT.A.A.SHIBI
OTHER PRESENT:
SRI.AMJAD ALI, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.09.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.6036/2019 2
ALEXANDER THOMAS, J.
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Crl.M.C.No. 6036 of 2019
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Dated this the 30th day of September, 2019
ORDER
The petitioner herein has been arrayed as the sole accused in the instant Annexure-A1 F.I.R. in Crime No.815/2019 of Thrikkunnappuzha Police Station, which has been registered for offences punishable under Sections 9 (p) and 10 of the Protection of Children from Sexual Offences Act, 2012, (POCSO Act) on the basis of the F.I. Statement given by the 2 nd respondent minor vicitm/defacto complainant on 1.7.2019 at about 4.45 p.m in respect of the alleged incident which had happened on the same day (1.7.2019) at about 12.30 in the afternoon.
2. The gist of the prosecution case made out in the F.I.R is that the victim is a minor boy, aged 17 years as on the date of the commission of the offence and that the petitioner with sexual intent had touched his thighs and his private parts on 1.7.2019 at about 12.30 p.m.in the afternoon. It is not beyond any dispute that now the Investigating Officer is convinced that as a matter of fact, the 2 nd respondent minor victim/defacto complainant has attained the majority age of 18 years even as on the date of alleged commission of offence (1.7.2019) and that therefore, none of the offences as per the POCSO Act will lie. In that Crl.M.C.No.6036/2019 3 regard, the Investigating Officer has filed a separate report as per Annexure-A2 dated 20.7.2019 before the notified Special Court dealing with POCSO cases stating that the offences in terms of Sections 9(p) and 10 thereof will not lie and that offence as per Section 511 of 377 of IPC is additionally added in the crime.
3. The case of the petitioner is that even going by the admitted allegations, none of the ingredients of the offence of attempt to commit the offence as per Section 377 of IPC (Section 511 of 377 of IPC) will lie in the instant case. It is urged by the petitioner that an offence of attempt to commit Section 377 of IPC would lie only if an attempt has been made by the accused person as understood in Section 511 of the IPC to commit an offence of carnal sexual intercourse against the order of the nature as conceived in Section 377 of the IPC etc.
4. After having heard both sides, it is now well settled that an offence as per Section 377 of IPC deals with unnatural offences and the person concerned should have committed carnal intercourse against the order of nature with any man, woman etc. without the consent of the victim. Further that the necessary ingredients of the offence of carnal intercourse against the nature would consist of acts like penetrative anal intercourse or any act whereby the visiting organ is enveloped by the visited organ like in a case where the male accused placing his genital organ between the thighs of the victim or between the cleavages of the Crl.M.C.No.6036/2019 4 buttocks etc. In the instant case, the allegations are only to the effect that the accused with sexual intent had touched the thighs and the genital part of the victim and therefore, it cannot even be contended that it would amount to the offence of attempt to commit the offence as per Section 377 of IPC. Hence, this Court has no hesitation to hold that the newly added the sole of offence of attempt to commit Section 377 of IPC (Section 511 of Section 377 of IPC) is not made out in the facts and circumstances of the case. This Court is now called upon only to decide whether the newly added sole offence of Section 511 of Section 377 of IPC is made out. This Court need not examine any issue as to whether any other offences are made out going by the admitted allegations present in the impugned Annexure-A1 F.I.R. In that view of the matter it is ordered that the impugned criminal proceedings to the extent it includes the offence of Section 511 of Section 377 of IPC will stand quashed. All other issues are left open.
With these observations and directions, the above Crl.M.C. will stand disposed of.
sd/-
ALEXANDER THOMAS, JUDGE acd Crl.M.C.No.6036/2019 5 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 THE CERTIFIED COPY OF THE FIR IN CRIME NO.815/2019 OF THRIKKUNNAPPUZHA POLICE STATION.
ANNEXURE A2 THE CERTIFIED COPY OF THE REPORT
SUBMITTED BY THE INVESTIGATING OFFICER
IN ANNEXURE A1 CASE BEFORE THE
ADDITIONAL SESSIONS COURT NO.1,
ALAPPUZHA.
True Copy
P.S. To Judge.