Kerala High Court
Ummer Sakafi vs State Of Kerala on 14 March, 2016
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 11TH DAY OF NOVEMBER 2016/20TH KARTHIKA, 1938
Crl.MC.No. 6833 of 2016
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SC 331/2016 OF ADDL. SESSIONS COURT, MANJERI
CRIME NO. 131/2016 OF POTHUKALLU POLICE STATION, MALAPPURAM
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PETITIONER/ACCUSED.:
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UMMER SAKAFI,
AGED 51 YEARS, S/O. MOHAMMED, MAVUNGAL KODERI
KURUMBALANGODE POTHUKALLU, MALAPPURAM DISTRICT.
BY ADVS.SRI.P.SAMSUDIN
SRI.K.C.ANTONY MATHEW
SRI.JITHIN LUKOSE
KUM.ANJU CLETUS
RESPONDENT/STATE.:
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STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM- 682 031,
THROUGH THE SUB INSPECTOR OF POLICE,
POTHUKALLU (CRIME NO. 131/2016)
BY PUBLIC PROSECUTOR SRI E.C.BINEESH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 11-11-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
K.V.
Crl.MC.No. 6833 of 2016 ()
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APPENDIX
PETITIONER(S)' ANNEXURES
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ANNEXURE A1 TRUE COPY OF THE FIR AND CHARGE SHEET IN CRIME NO.
131/2016 OF POTHUKALLU POLICE STATION.
ANNEXURE A2 TRUE COPY OF THE EXTRACT OF SCHOOL ADMISSION
REGISTRAR.
ANNEXURE A3 TRUE COPY OF THE REPORT OF EXAMINATION DATED
14.03.2016.
ANNEXURE A4 TRUE COPY OF THE STATEMENT RECORDED U/S 164 CR. PC.
ANNEXURE A5 TRUE COPY OF THE FIR IN CRIME NO. 127/2016 OF
POTHUKALLU POLICE STATION.
RESPONDENT(S)' ANNEXURES NIL
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/TRUE COPY/
P.A.TO JUDGE
K.V.
SUNIL THOMAS, J.
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Crl.M.C.No. 6833 of 2016
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Dated this the 15th day of November, 2016
O R D E R
The sole accused in SC No.331/2016 arising from Crime No.131/2016 of Pothukallu Police station for offences punishable under Sections 342,506,376(C) IPC, Section 75 of JJ Act and Section 5 (n) (i) read with 6 of POCSO Act 2012, is the petitioner herein.
2.The crux of the allegation of the prosecution is that, during several days from April 2014 to 24/2/2016 the accused had committed rape of the defacto complainant, who is his own daughter while she was a minor now aged 19 years. She was threatened that if she disclosed it to any other person, she would be killed. It is alleged that he committed rape of the younger daughter also .
3. The contention of the learned counsel for the petitioner is that, even though according to the prosecution the incident happened between April 2014 to 24/2/2016, there are contrary materials. According to the prosecution, the date of birth of the victim is 9/3/1997. Learned counsel relied on Annexure A3, which is a report of the examination of the victim by a doctor. Annexure A3 shows that the incident happened from 2015 April onwards. It Crl.M.C.No.6833/2016 2 is noted that in the statement given to the Magistrate on 15/3/2016 under Section 164 Cr.P.C., produced as Annexure A4, she had given a statement that father had been harassing her for the past one year. Relying on these two materials, learned counsel contended that even according to the prosecution case, the harassment happened from April 2015 onwards after she had crossed the age of a "child" as defined under the POSCO Act 2012. Hence, he cannot be prosecuted for offence under POSCO Act, contends the learned counsel.
4. Per contra, learned Public Prosecutor invited my attention to a statement given by the victim to the police with reference to her earlier statement given on 14/3/2016. This statement was recorded on 15/3/2016 . In that statement it is stated that she wrote the Plus One examination in March 2014. Sexual harassment happened in the first week of that April, after her examination. She has given the details of harassment. She asserted that harassment continued upto 24/2/2016. In her further statement given to the Women Sub Inspector she has again asserted that the harassment started in April 2014.
5. Evidently, two materials are available. It is ultimately for the court below to decide which version is to be accepted on the basis of her statement given at the time of examination and all attending circumstances. Though the certificate of doctor indicates that the incident started in April 2015, it is not clear as to Crl.M.C.No.6833/2016 3 the person on whose information such recording was made. Further there are materials to indicate prima facie that she was subjected to harassment from April 2014 onwards. If that version is believed, she is a child as defined under POSCO. Essentially this is to be determined in the trial court after examination of the victim.
6. In the above circumstances, I find no justification in the contention of the learned counsel for the petitioner that he is not liable to be prosecuted under POSCO Act.
Crl.M.C. fails and is dismissed.
Sd/-
SUNIL THOMAS Judge dpk /true copy/ PS to Judge.
Crl.M.C.No.6833/2016 4