Kerala High Court
V.P.Nazar @ Nachikka vs The Sub Inspector Of Police on 9 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
Tuesday, the 9th day of November 2021 / 18th Karthika, 1943
CRL.M.APPL.NO.1/2021 IN CRL.A NO. 435 OF 2020
S.C.No.133/2017 of the Special Court for Trial of offences under POCSO Act &
Children's Court (Additional Sessions Court-1) Kalpetta, Wayanad.
PETITIONER/APPELLANT:
V.P.NAZAR @ NACHIKKA, AGED 45 YEARS S/O.AMMED KOYA, VILANHIPPILAKKAL
HOUSE, KUTTAMANGALAM, MUTTIL SOUTH VILLAGE, WAYANAD.
RESPONDENTS/RESPONDENTS
1. THE SUB INSPECTOR OF POLICE, KALPETTA POLICE STATION, WAYANAD 673
121.
2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, EERNAKULAM 682 031.
Petition praying that in the circumstances stated therein the High
Court be pleased to suspend the sentence imposed upon the appellant in
S.C.No.133/2017 on the file of the Special Court for Trial of offences
under POCSO Act & Children's Court (Additional Sessions Court-1) Kalpetta,
Wayanad, pending the appeal.
This petition coming on for orders upon perusing the petition and
upon hearing the arguments of SRI.T.G.RAJENDRAN, Advocate for the
petitioner and of PUBLIC PROSECUTOR for the respondent,the court passed
the following:
p.t.o
M.R.ANITHA, J.
-------------------
Crl.M.A.1/2021 in Crl.A.435 /2020
------------------------------------------
Dated : 9th November, 2021
ORDER
1. Petitioner is the sole accused in S.C.133/2017 on the file of the
Special Court for Trial of Offences under POCSO Act & Children's
Court (Additional Sessions Court-I), Kalpatta, Wayanad.
2. Petitioner/accused has been convicted and sentenced under Section
376(2)((i) of the IPC and Section 354 A(I)(i) read with Section 354 A(2)
IPC and Section 3(a) r/w Section 4 and 7 read with 8 of the POCSO
Act, 2012 and was sentenced to undergo Rigorous imprisonment for a
period of 10 years and to pay a fine of Rs.50,000/- in default to
undergo rigorous imprisonment for one year under Section 376 (I) (i)
and sentenced to undergo rigorous imprisonment for 5 years and to
pay fine of Rs.20,000/- in default to undergo rigorous imprisonment
for six months under Section 7 r/w 8 of the POCSO Act.
3. The Prosecution case is that one day in the month of January 2017,
while the victim went to the shop of the accused for purchasing
sweets and thereafter on several occasions till 27.02.2017, the
accused had committed sexual harassment/aggravated sexual assault
upon CW1, a female child aged 14 years, by maintaining physical
Crl.M.A.1/2021 in Crl.A.435/2020
contact and advances involving unwelcome and explicit sexual
overtures, by kissing her and squeezing her breast within the kitchen
of his hotel styled as "Madeena Mess" bearing door No.XIV/113 (2011-
2016) of Muttil Grama Panchayat. PW1 to PW31 were examined and
Exts.P1 to P39 were marked on the side of the prosecution. M.O.1 to
M.O.3 were also identified and marked.
4. According to the learned counsel for the petitioner, the victim turned
hostile and there was no evidence to prove the guilt of the accused
beyond reasonable doubt and hence the learned Sessions Judge has
went wrong in convicting the petitioner/accused in this grievous
crime. It is also his contention that the entire appreciation of
evidence by the learned Sessions Judge is also perverse and
unsustainable and hence the petition for suspension of sentence filed
by the petitioner is to be allowed. According to the counsel, the
acquittal of the accused under Section 9(1) r/w 10 of the Protection of
Children from Sexual Offences Act 2012 ( in short the Act), proves that
there was no evidence of having committed the sexual assault on a
minor child. The acquittal under Section 5(1) r/w Section 6 of the Act
shows that the appellant has not committed any penetrative sexual
assault. According to him, the PW3, the victim turned hostile denying
the entire prosecution case including the statement given by her
under Sections 161 and 164 Cr.P.C. So also, the statement given to
the doctor and also at the time of identification parade. It is also his
contention that the statements allegedly given to the investigating
officer, Doctor and Magistrate are previous statements and when the
statements are denied by her, it cannot be used as substantive
evidence. The evidence of PW4 and PW5 though relied upon by the
Crl.M.A.1/2021 in Crl.A.435/2020
learned Sessions Judge, their evidence is only to the effect that the
victim was seen nearby the shop of the appellant, it cannot be
treated as an incriminating circumstances. So the doctor's evidence
though suggest that there was evidence of vaginal penetration,
according to him it is not conclusive. So according to him there is no
evidence to prove the guilt against the accused beyond reasonable
doubt and hence, the conviction and sentence passed by the court
below is not sustainable and the argument notes raising the above
contentions have also been filed by the learned counsel.
5. The learned Public Prosecutor filed objection to the petition and fully
supported the conviction and sentence passed by the learned
Sessions Judge. According to the Prosecutor, even though PW3, the
victim turned hostile, PW4 and PW5 and some other material
witnesses supported the prosecution case, the evidence of PW4
proved the circumstances in which the offence was committed and he
had seen the victim in 'Madeena Mess' of the accused on 27.02.2017
at 4.30 p.m. The victim also informed him about the rape by the
accused. So according to him, the trial court rightly relied upon the
evidence of PW4, PW5 and PW9 and victim was only 14 years of old
at the time incident. Hence according to Prosecutor there is no reason
whatsoever to suspend the sentence. He also relied on Sidharth
Vashisht @ Manu Sharma Vs. State (N.C.T Delhi) and also
Akilesh Kumar Sinha V. State of Bihar, [2000 KHC 1265]; Vijay
Kumar V. Narendra and others, 2002KHC 1751;
6. The main contention of the learned counsel for the petitioner is that
the accused has been under confinement from 24.6.2020 on wards
and this is a case in which the prime witness, the victim turned
Crl.M.A.1/2021 in Crl.A.435/2020
hostile to the prosecution and she did not support her statement
given to the police or to the magistrate and hence according to him
there is no evidence as such to connect him with the offence.
7. The learned counsel produced copy of the depositions of the victim
girl who was examined as PW3. On going through the same, it is seen
that she totally denied the statement given to the police and also the
alleged history of the incident revealed to the doctor is also denied by
her. Further she denied the factum of producing the cloth before the
police and the identification of the accused before the magistrate is
also denied by her. Though during cross examination by the Public
Prosecutor she admitted certain statement. In the very next sentence,
she would add that it has been revealed as told by the persons
accompanied her. So the witness totally retract from the version
given to the police. Copy of the deposition of PW13, the doctor also
has been produced. The doctor would state that the history of the
incident revealed to her is that before one month, Nazar took her to
inside the shop room and attempted to remove the cloths and
touched on the private parts and kissed on her lips and threatened
that if she didn't come daily, it will be intimated to the public and out
of that threat she went there 10 to 15 days and nothing else has been
done. The examination of the doctor was on 5.3.2017 and according
to the doctor hymen was torned and no fresh injuries on that area
and findings on examination are consistent with history of alleged
assault. There is evidence of vaginal penetration.
8. PW13 is the mother also seems to have been cross-examined. Apart
from the age of the victim, nothing connecting with the offence is
seems to have been brought through the evidence of PW13.
Crl.M.A.1/2021 in Crl.A.435/2020
9. As contended by the learned counsel, the learned Sessions Judge
mainly relied upon the evidence of PW4, who had seen the victim in
the shop of the accused and PW5 also deposed that PW4 had seen the
victim in Madeena Mess on 27.2.2017 at 4.30 p.m., The victim
informed PW5, the accused committed rape upon her and sexually
harassed her. PW9 also deposed that she came to know about the
incidents as informed by PW5 and she is in acquaintance with the
victim when the victim informed her that Nazar committed rape on
her from Madeena Mess. So according to the trial court, the
evidence of PW4, PW5 and PW9 point to the guilt of the accused and it
supports the medical evidence of PW13. So the court below was of
the view that even though the victim turned hostile her admission
before the court about the statement given to the investigating officer
and before the magistrate unerringly points towards the guilt of the
accused. But the statement of the victim produced from the side of
the petitioner would go to show that even though the victim admitted
certain statements, during cross examination by the prosecutor, in the
very next sentence, she added that it was so stated as told by the
people accompanied her. The evidence of PW4 which is relied upon
by the trial court as per the judgment itself would only go to show
that she saw the victim in the shop of the accused and evidence of
PW5 is that PW4 saw the victim in 'Madeena Mess' and the victim
informed PW5 that the accused committed rape upon her and
asexually assaulted her. So in such circumstances, taking into
account the totality of the facts and circumstances, I am of the view
that the petitioner has got an arguable case before this Court. He has
been under confinement from 24.6.2020 onwards. Though the learned
Crl.M.A.1/2021 in Crl.A.435/2020
Public Prosecutor relied upon the aforementioned decisions those are
not squarely applicable to the facts and circumstances of this case.
In the result, the sentence passed against the petitioner is
suspended for a period of six months, on the following conditions :
1. The petitioner shall execute a bond for Rs.75,000/- (Rupees seventy
five thousand only) with two solvent sureties each for the like sum
to the satisfaction of the trial court.
2. From the date of his release, he shall report before the Station
House Officer of the Police Station concerned within the limits he
resides on every Monday between 9.00 am and 10.00 am.
3. On completion of six months of his release, he shall report before
the Superintendent, Central Prison concerned at 10.00 a.m.
4. He shall surrender his passport before the jurisdictional court within
ten days from the date of release; if he does not possess passport,
an affidavit shall be filed to that effect;
5. He shall not involve in any offence while on bail.
Sd/-
M.R.Anitha, Judge
Al/- 5.11.
09-11-2021 /True Copy/ Assistant Registrar
