Kerala High Court
Shinoj vs State Of Kerala on 5 November, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
CRL.MC NO. 8862 OF 2024
CRIME NO.359/2019 OF CBCID, THIRUVANANTHAPURAM
AGAINST THE ORDER DATED 11.10.2024 IN CRMP NO.2413 OF 2024 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT (ATROCITIES & SEXUAL
VIOLENCE AGAINST WOMEN & CHILDREN), THIRUVANANTHAPURAM
SC NO.261 OF 2020 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT (ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN),
THIRUVANANTHAPURAM
PETITIONER/ACCUSED:
SHINOJ
AGED 42 YEARS
SHINOJ, S/O. RAVEENDRAN PANCHAMI, TP 14/339, VARUVILA,
NEAR PUTHENKADA JUNCTION, THIRUPPURAM PANCHAYATH,
THIRUPPURAM VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM,
PIN - 695133.
BY ADVS.
C.P.UDAYABHANU
NAVANEETH.N.NATH
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031.
SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
24.10.2024, THE COURT ON 05.11.2024 PASSED THE FOLLOWING:
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Crl.M.C.No.8862/2024
A. BADHARUDEEN, J.
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Crl.M.C.No.8862 of 2024-G
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Dated this the 5th day of November, 2024
ORDER
This Crl.M.C is at the instance of the sole accused in
S.C.No.261/2020 on the files of the Special Court for the trial of
Protection of Children from Sexual Offences Act (`POCSO Act' for short)
Cases, Thiruvananthapuram, and he impugns the common order dated
11.10.2024 in Crl.M.P.Nos.2413/2024 and 2414/2024, whereby the
petitions filed by the accused to reopen the evidence and to send Ext.D2
pen drive and Ext.D3 mobile phone for cyber forensic examination was
disallowed by the Special Court.
2. Heard the learned counsel for the petitioner and the
learned Public Prosecutor in detail. Perused the impugned order.
3. In the instant case prosecution alleges commission of
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offences punishable under Sections 376(2)(j)(k)(l)(n), 376(c) of the Indian
Penal Code (`IPC' for short) and Sections 4 r/w3, 6 r/w 5(k)(l)(p), 8 r/w 7,
10 r/w 9(k)(l)(p), 12 r/w 11(iii)(iv) of POCSO Act.
4. Now prosecution evidence was completed. Defence
evidence also closed after examination of DW1 to DW4 and marking of
Exts.D1 to D4 on the side of the petitioner/accused. After closing the
defence evidence, the present petitions have been filed. The learned
Special Judge addressed the same by a lengthy order and finally dismissed
the same.
5. While assailing the common order it is specifically
argued by the learned counsel for the petitioner that during trial of these
cases, O.P(Crl) No.116/2023 was filed before this Court with prayer to
send the mobile phone to the laboratory. But the said O.P was dismissed
as per Annexure 3 judgment permitting the accused to produce all the
evidence before the Special Judge during trial. Even though the mobile
phones of the victim and the accused were seized during the investigation,
the cyber report did not reveal any such fact. According to the learned
counsel for the petitioner, there were messages and chats sent by the
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victim to the accused and in order to prove the same, the accused himself
got examined under Section 315 of Cr.P.C and he produced his mobile
phone and pen drive marked as Ext.D2 (pen drive) and Ext.D3 (mobile
phone) to get it done cyber forensic examination to prove the said fact.
According to the learned counsel for the petitioner, the accused has no
other option to prove the same. Therefore, dismissing the petitions filed
by the accused as per Annexure-A4 common order is illegal and the same
is to be interfered for the purpose of granting the reliefs prayed for by the
petitioner as part of the defence evidence.
6. The prosecution side opposed the plea specifically
contending that Exts. D2 and D3 or the contents thereof are not relevant to
decide the case. The prosecution side also argued that the Investigating
Officer seized the mobile phone of the accused as well as the victim during
investigation and as per Ext. P36, the data was copied to the pen drive and
sent for cyber forensic examination, but no data derived therefrom. It is
also submitted by the prosecution side that at the time of examining the
accused as DW4, Exts.D2(a) to D2(g) were also marked on the side of the
accused and those messages as well as chats were of 12.08.2019 after the
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release of the petitioner on bail. The prosecution side also submitted that
Ext. D2 series were not brought to the attention of the victim, who was
examined as PW1 and her parents, PW5 and PW6, which should have
been used to contradict them, being previous statements.
7. The learned Special Judge addressed the genesis of the
case where the accused/petitioner started working as Physiotherapist at
KIMS Hospital and set up his own institution, TIMS. The minor victim,
who is differently-abled with 74% permanent disability, began to attend
the institution from May, 2011 for physiotherapy and for remedial therapy
and speech therapy from 2015 onwards. The accused provided treatment
to the victim at her house and later she visited TIMS for treatment.
During 2016, the parents noticed that the victim had been using mobile
phone excessively and it was informed to one Doctor XXX (pseudo name)
at KIMS Hospital and she discovered chats between the accused and
victim and in turn the victim disclosed the sexual assault committed by the
accused. The prosecution allegation is that in August, 2024 the accused
show the victim a sex video in his mobile phone and instructed the victim
to do the said acts. Then the accused subjected the victim to penetrative
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sexual assault as well as oral sex and continued the same till 2019 and the
victim disclosed the same to Dr.XXX. It is relevant to note that this crime
was registered originally in 2019 and investigated by the CBCID and they
filed final report. Reading the genesis of the case, the same has been
pending before the Special Court for the last 4 years even though the
Special Courts under the POCSO Act have been established to ensure
timely disposal of the POCSO Act cases. It is discernible form the order
of the learned Special Judge that in such a case after affording sufficient
opportunity to the accused to defend the case as the part of fair trial
prosecution evidence completed and thereafter the accused was given
opportunity to put up his defence and accordingly he examined DW1 to
DW4 (DW4 is none other than the accused himself). It is discernible from
the order further that the accused was defended by one Senior Counsel and
this case stood adjourned to 05.10.2024 to his convenience, after
completion of the defence evidence on 19.01.2024. Thereafter, another
counsel filed these petitions.
8. The learned Special Judge depicted the history of the
case throughout. While dismissing the application, the learned Special
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Judge observed that as per the evidence given by DW4 (accused himself)
the chats and audio messages which were sent after he was released on bail
in connection with this crime. It is relevant to note that the victim is a
person having disability and she was suffering from seizure
disorder/discord, cerebral palsy, spastic dipelgia, intellectual disability and
physical disability and the percentage of permanent disability thus would
come to 74%. Now the contention raised by the accused is that there were
messages and chats sent by the victim after the release of the petitioner on
bail in this crime and the same are relevant to prove the defence case. In
fact, going by the facts of this case the prayer to reopen the evidence and
send Exts.D3 and D6 for forensic laboratory examination found to be
unwarranted and the same is nothing but an attempt to protract trial of a
case which has been pending for the last 4 years. Having held so, this
petition would necessarily fail and accordingly this petition stands
dismissed.
Interim order already granted stands dismissed.
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Registry shall forward a copy of this order to the jurisdictional
court, for information and pronouncing judgment, today itself through e-
mail.
Sd/-
A. BADHARUDEEN, JUDGE
rtr/
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PETITIONER'S ANNEXURES
Annexure 1 CERTIFIED COPY OF THE COMMON ORDER
DT.11.10.2024 IN CRL.M.P.NO.2413/2024 &
CRL.M.P.2414/2024 IN S.C.NO.261/2020 PASSED
BY THE HON'BLE ADDITIONAL SESSIONS COURT,
(POCSO), THIRUVANANTHAPURAM.
Annexure 2 TRUE COPY OF THE CHARGE FRAMED DATED
29.06.2022 AGAINST THE PETITIONER/ACCUSED BY
THE HON'BLE ADDITIONAL SESSIONS COURT,
(POCSO), THIRUVANANTHAPURAM.
Annexure 3 TRUE COPY OF THE ORDER OP (CRL) NO.116/2023
DATED 10.02.2023 PASSED BY THE HON'BLE HIGH
COURT OF KERALA.
Annexure 4 COPY OF CRL. M.P. NO. 2413/2024 FILED BY THE
PETITIONER ON 23.09.2024 BEFORE THE
ADDITIONAL SESSIONS COURT, THIRUVANATHAPURAM.
Annexure 5 COPY OF CRL. M.P. NO.2414/2024 FILED BY THE
PETITIONER ON 23.09.2024 BEFORE THE
ADDITIONAL SESSIONS COURT, THIRUVANATHAPURAM.
