Kerala High Court
Xxxx vs State Of Kerala on 11 February, 2025
2025:KER:10981
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA, 1946
CRL.MC NO. 1861 OF 2023
CRIME NO.960/2018 OF VANCHIYOOR POLICE STATION, THIRUVANANTHAPURAM
SC NO.998 OF 2020 OF ADDITIONAL SESSIONS COURT
(POCSO),THIRUVANANTHAPURAM
PETITIONER/ACCUSED:
XXXX
XXXX
BY ADVS.
NITHYA R.
SHAJIN S.HAMEED
RESPONDENT/STATE & CW1:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2 XXXX
XXXX
R1 BY PUBLIC PROSECUTOR SRI.JIBU T.S.
R2 BY ADVS.
SRI.SHAIJAN C GEORGE C GEORGE
SRI.VINAI JOHN(K/1116/2021)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
29.1.2025, THE COURT ON 11.02.2025, PASSED THE FOLLOWING:
CRL.M.C.NO.1861 OF 2023 2
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CR
ORDER
Dated this the 11th day of February, 2025
Sole accused in S.C.No.998/2020 on the files of the
Additional Sessions Court (PoCSO), Thiruvananthapuram, seeks
quashment of the said case arising out of Crime No.960/2018 of
Vanchiyoor Police Station, Thiruvananthapuram, where the
accused is alleged to have committed offences punishable under
Section 7 r/w Section 8, Section 9(l)(m)(n) and Section 10 of the
Protection of Children from Sexual Offences Act, 2012 (for short,
'the PoCSO Act' hereinafter).
2. Heard the learned counsel for the petitioner and the
learned counsel appearing for the 2nd respondent/de facto
complainant. Also heard the learned Public Prosecutor, in detail.
3. In this matter, the allegations against the accused is
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that, at about 12.15 hrs. on 12.5.2018, when the accused was given
temporary custody of the minor boy aged 7 years, as per the
interim order of the Family Court, Thiruvananthapuram, the
accused touched on the penis of the minor victim with sexual
intent and made comments about the size of the penis and
thereby, he committed the above offences.
4. While seeking quashment, the learned counsel for the
petitioner argued that the entire allegations in Annexure A FIR
and Annexure C Final Report in this crime are false and the said
allegations are falsely raised by the 2 nd respondent/de facto
complainant, who got divorce from the petitioner, in order to
defeat him in O.P.No.35/2015 filed by him to get custody of the
minor. It is pointed out that, in fact, the allegation of sexual
assault was alleged while the victim was given interim custody on
the date of the alleged occurrence also, by the Family Court.
According to the learned counsel for the petitioner, Section 7 of
the PoCSO Act defines sexual assault and the offences under the
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PoCSO Act are inter-related to Section 7. Therefore, merely
touching the penis of the child would not make out an offence if
the same is not with sexual intent. Accordingly, the learned
counsel for the petitioner submitted that the petitioner got
custody of his minor son because of his affection towards him and
he had no sexual intent. Therefore, the allegations are false.
Apart from the same, the learned counsel pointed out grounds (ii)
to (iv) in the Crl.M.C. also to justify quashment as prayed for.
Grounds (ii) to (iv) in the Crl.M.C. are as under:
ii. The 2nd respondent has selected the most
unpleasant way to win the case in favor of her and
thereby made her minor son a scapegoat. The 2 nd
respondent fearing that the family court may grant
custody of the minor son to the petitioner has foisted
the present crime, in order to defeat the ends of
justice. The 2nd respondent in order to pressurize the
petitioner and settle her end has foisted the present
case. The provisions of Protection of Children from
Sexual Offences Act, 2012 is misused in the present
case. In one instance, this Honorable Court has
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expressed its dissatisfaction in the manner in which
the act is being misutlilized to settle personal scores
or vendetta and how the life of persons is being
played with at ease. This Honorable Court in Baby
v. State of Kerala and another 2013 (4) KLT
15 observed,
"This case reflects the potential danger
to all. No one seems to be safe. It seems
that anybody can be implicated
easily".
iii. The 2nd respondent in order to cover up her
mistakes and to wreak vengeance upon the
petitioner has falsely implicated the petitioner in the
case. The allegation put forward by the 2 nd
respondent is that on 12/05/2015, when she
produced the child before the Family Court at 11:00
am in compliance with the interim order of the
Family Court, the accused, who is the father of the
child at about 12.15 pm, touched the body of minor
son including his private part. It has come out in the
complaint of the 2nd respondent and statement of
the child that the alleged victim was sitting near 2 nd
respondent and there were other persons sitting
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near to them in Court. If the said incident had
happened as alleged, the 2nd respondent or other
parties present there would have been shown their
resistance immediately. Further, there was no
complaint by the 2nd respondent to the staff of court
who was present there, which would show that her
allegation is false.
iv. The 2nd respondent in order to wreak
personal vengeance against the petitioner is
making false allegations. In Vesa Holdings (P)
Ltd and another v. State of Kerala & others
2015 (1) KLD 823, it was held by the Supreme
Court that "Criminal Proceedings should not be
encouraged when it is found to be mala-fide." In
Parminder Kaur v. State of U.P & another,
AIR 2010 SC 840, it was held that "When a
criminal proceeding is manifestly attended with
mala-fide and/or where the proceedings is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused with a view to
spite him due to private and personal grudge, the
same may be quashed in exercise of its powers
under section 482 of Cr.P.C." In R. Kalyani v.
Janak C. Mehta and others 2009 (1) SCC 516,
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it was held that, "One of the paramount duties of the
superior courts is to see that a person who is
apparently innocent is not subjected to persecution
and humiliation on the basis of a false and wholly
untenable complaint."
5. Zealously opposing quashment, the learned
counsel for the 2nd respondent/the de facto complainant, who is
the mother of the victim child would submit that the de facto
complainant filed counter statement and additional counter
statement with documents and the contention of the 2 nd
respondent/de facto complainant is that the allegations against
the petitioner raised by the minor child are the sexual assault
suffered by the minor, which led to commission of the offences
alleged, and the de facto complainant never persuaded him to do
anything so as to implicate the petitioner in the case. It is pointed
out by the learned counsel for the 2 nd respondent further that
marriage between the petitioner and the 2 nd respondent was
solemnized on 11.7.2009 and while they had been living as
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husband and wife, during the initial days itself, the petitioner's
mother always blamed the 2nd respondent as a barren woman.
Thereafter, the 2nd respondent persistently demanded medical
consultation for the petitioner as well as the 2 nd respondent and
ultimately, there was medical consultation at SAT Hospital,
Thiruvananthapuram. During medical examination at SAT
Hospital, Thiruvananthapuram, it was revealed that the
petitioner is impotent and he is aware of the same even prior to
marriage. Thereafter, as advised by the Doctor at SAT Hospital,
Thiruvananthapuram, the petitioner and the 2 nd respondent
continued treatment at KJK Hospital, Nalanchira,
Thiruvananthapuram and the impotency of the petitioner was
confirmed and on the same day, the Doctor informed that the 2 nd
respondent had no issues and she could deliver a child after
conceiving from a donor. According to the 2 nd respondent, the
minor victim was born by method of 'Intrauterine Insemination'
(IUI) by using donor's sperm, as evident from Annexure R2(a),
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true copy of Infertility Case Record issued from KJK Hospital,
Nalanchira, Thiruvananthapuram, as consented by the
petitioner. In fact, the petitioner gave consent to the 2 nd
respondent to undergo IUI procedure to suppress his impotency
from the outside world. Meanwhile, the 2nd respondent also
noticed illicit relationship between the petitioner and another
lady. According to the learned counsel for the 2 nd respondent,
after birth of the minor victim, the petitioner was too cruel to the
victim and he used to call the minor victim as a bastard and he
uttered that he would kill him. Further, he ashamed the 2 nd
respondent by calling her as a bitch. It is also pointed out by the
learned counsel for the 2nd respondent that since the relationship
between the petitioner and the 2nd respondent found to be
difficult to continue due to the attitude of the petitioner, the
marriage was dissolved on 27.6.2014, as evident from Annexure
B. The learned counsel placed decision of the Apex Court in
Attorney General & Ors. v. Satish & Ors. reported in
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(2022) 5 Supreme Court Cases 545 with reference to
paragraph Nos.23 to 35, 40, 45, 63 and 74 to 82, while asserting
that the overt acts at the instance of the petitioner herein are to be
held as done with sexual intent. In the decision, the Apex Court
held in paragraph No.82 as under:
"82. The circumstance in which touch or physical
contact occurs would be determinative of whether it is
motivated by "sexual intent". There could be a good
explanation for such physical contact which include the
nature of the relationship between the child and the
offender, the length of the contact, its purposefulness;
also, if there was a legitimate non-sexual purpose for the
contact. Also relevant is where it takes place and the
conduct of the offender keep in mind that "sexual intent"
is not defined, but fact-dependant-as the Explanation to
Section 11 specifies."
6. In this connection, it is submitted by the learned
counsel for the petitioner that, before divorce there was a
compromise so as to give custody of the minor child to the 2 nd
respondent and also to provide maintenance to the minor child at
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the rate of Rs.1,000/- per month by the petitioner.
7. As rightly pointed out by the learned counsel for the 2 nd
respondent even though the marriage between the petitioner and
the 2nd respondent was dissolved as per Annexure B order in a
joint petition filed by them, the relief insofar as maintenance was
not granted by the court. In this connection, it is submitted by
the learned counsel for the petitioner that as far as paternity of a
child born in IUI mode is concerned, at present, the Assisted
Reproductive Technology (Regulation) Act, 2021 (for short, 'the
Act, 2021' hereinafter) came into force w.e.f. 25.1.2022 would
apply, though the same has no direct application in the instant
case, since the said Act has no retrospective effect.
8. As per Section 31(1) and 31(2) of the Act, 2021, it has
been provided as under:
31. Rights of child born through assisted
reproductive technology.-
(1) The child born through assisted reproductive
technology shall be deemed to be a biological child of the
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commissioning couple and the said child shall be entitled
to all the rights and privileges available to a natural child
only from the commissioning couple under any law for the
time being in force.
(2) A donor shall relinquish all parental rights over
the child or children which may be born from his or her
gamete.
9. Thus, as per Section 31(1), if a child is born to a legally-
wedded wife through IUI method, then also, the child shall be
deemed to be the biological child of the commissioning couple
and the said child shall be entitled to all the rights and privileges
available to a natural child only from the commissioning couple
under any law for the time being in force. As per Section 31(2), a
donor shall relinquish all parental rights over the child or
children who may be born from his or her gamete. Since the Act,
2021 came into force w.e.f. 25.1.2022, the same has no
application in the present case as no retrospective effect seen
given to the Act.
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10. Having gone through the rival contentions, it is evident
from the medical records produced by the 2nd respondent that the
victim child was born in IUI method and the records also would
show that the petitioner was found to be incapable of producing
sperms as part of treatment and thereafter, the 2nd respondent
conceived from a donor and gave birth to the minor child. At the
same time, as per the final report in this case, witness No.13,
Dr.Manoj R, Casualty Chief Medical Officer, General Hospital,
Thiruvananthapuram, is cited by the prosecution to prove the
potency of the petitioner as per the certificate issued by CW13.
Thus, the potency of the petitioner itself is subject to different
types of medical opinion, as discussed. Even though these are the
factual aspects involved in this case, for which, this Court need
not enter into a finality, the question that arises for consideration
is, whether the prosecution records would show prima facie
commission of offences punishable under Section 7 r/w Section 8,
Section 9(l)(m)(n) and Section 10 of the PoCSO Act, by the
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petitioner herein?
11. As pointed out by the learned counsel for the 2 nd
respondent and the learned Public Prosecutor, the initial
statement recorded as that of the victim and the 164 statement
recorded as that of the victim assume significance and therefore,
reference to the same is necessary.
12. In this matter, FIR was registered on 18.5.2018 on the
strength of a complaint filed by the 2 nd respondent before the City
Police Commissioner, Thiruvananthapuram, disclosing an
occurrence on 12.5.2018 occurred at court premises, when the
same was forwarded to the S.H.O., Vanchiyoor Police Station,
Thiruvananthapuram city. In the complaint, the 2 nd respondent
narrated her marriage with the petitioner, its collapse, also birth
of the victim child and filing of O.P.No.35/2015 by the petitioner.
In the said complaint, the allegation of sexual assault against the
minor was disclosed. It is true that the occurrence was on
12.5.2018 and the complaint was lodged by the 2 nd respondent on
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17.5.2018. The de facto complainant is a senior clerk working in
Government Medical College, Thiruvananthapuram. On
18.5.2018, the Police Inspector, Vanitha Cell,
Thiruvananthapuram, recorded the statement of the minor victim
by putting questions and getting answers thereof. In the
statement, the victim disclosed that he had love towards his
father since he used to provide sweets, juice etc., when he came to
the court. When a question was asked, why he felt disaffection to
his father, he stated that, the disaffection started when he went to
the court and the father touched on his head, legs and on the
organ used for urination. Regarding the allegation in the
statement of the victim, when the same was asked by the learned
Magistrate while recording the 164 statement that, whether
Arunkumar touched on him, he stated that he touched on the
organ used in the toilet. According to him, he did not know who is
Arunkumar. His case further is that, when he was in the custody
of Arunkumar at the court premises, he used to touch on his hair,
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fondle on his cheek and thigh. His further statement is that,
Arunkumar used to catch hold of his head and cheek, pat on his
thigh and catch hold of the organ used in the toilet and no other
assault. He further stated that Arunkumar had done the same on
so many occasions. In fact, this is the statement given by the
victim before the learned Magistrate.
13. On perusal of the complaint lodged by the de facto
complainant, the allegation is that, Arunkumar used to catch hold
of the minor victim's hand, legs and also on the organ used for
urination by commenting whether the same was growing. When
the statement of the victim was recorded by the Police Inspector,
Vanitha Cell, his version was that he disliked his father by name
Arunkumar stating that he used to catch hold of his head, legs
and on the organ used for urination. But when he had given
statement before the learned Magistrate, instead of using the
word 'the organ used for urination', he stated that the 'organ used
in the toilet'.
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14. In the context of the statement given by the victim as
extracted above, it is relevant to refer Section 7 of the PoCSO Act.
Section 7 of the PoCSO Act reads as under:
7. Sexual assault.--Whoever, with sexual
intent touches the vagina, penis, anus or breast of the
child or makes the child touch the vagina, penis, anus
or breast of such person or any other person, or does
any other act with sexual intent which involves
physical contact without penetration is said to commit
sexual assault.
So, touching on the vagina, penis, anus or breast of the child or
making the child touch the vagina, penis, anus or breast of such
person or any other person, or doing any other act with sexual
intent which involves physical contact without penetration is an
act of sexual assault. Further, Section 30 of the PoCSO Act deals
with presumption of culpable mental state. In Section 30, it has
been provided as under:
30. Presumption of culpable mental state.
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--(1) In any prosecution for any offence under this Act
which requires a culpable mental state on the part of
the accused, the Special Court shall presume the
existence of such mental state but it shall be a defence
for the accused to prove the fact that he had no such
mental state with respect to the act charged as an
offence in that prosecution.
(2) For the purposes of this section, a fact is said
to be proved only when the Special Court believes it to
exist beyond reasonable doubt and not merely when
its existence is established by a preponderance of
probability.
Explanation to Section 30 provides that "culpable mental state"
includes intention, motive, knowledge of a fact and the belief in,
or reason to believe, a fact.
15. According to the de facto complainant, she conceived
from donor's sperm and gave birth to the victim. That apart, the
petitioner herein used to blame her as a bitch and also called the
child as a bastard. But the petitioner filed O.P.No.35/2015 to get
custody of the child where the medical records produced by the
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2nd respondent would show that the victim was born from a
donor. In the Act, 2021, Section 31(1) specifically provides to treat
the commissioning couple as parents of the child born through
Assisted Reproductive Technology. As submitted by the learned
counsel for the petitioner, because of the registration of this
PoCSO case, the original petition filed by the petitioner for getting
custody of the minor child was not proceeded.
16. It is true that stringent provisions are incorporated in
the PoCSO Act to punish the culprits who are involved in sexual
assault, molestation and sexual harassment against children
below 18 years. The intent behind the legislation is to protect the
interest of the children from sexual exploitation. But in practical
application, apart from registering so many genuine cases, misuse
of the provisions of this Act to settle score is not unusual. In cases
when the husband and wife are in loggerheads and one among
them sues for custody of a minor child, there are instances
whereby the other spouse who is not ready to part with the
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custody of the minor used to fabricate facts to implicate the other
spouse in PoCSO offences by using the child whose custody is
sought for. The intention behind implicating the spouse who
demands custody of the child is to avoid the claim for custody.
17. In the instant case, O.P.No.35/2015 has been filed by
the petitioner for custody of the victim child and the occurrence
was on 12.5.2018, when custody for a short time at the court
premises was given to the petitioner. It is discernible that prior
to the occurrence also, on many occasions, the petitioner had
custody of the victim as an interim arrangement at the court
premises till 12.5.2018.
18. In this matter, the crime itself was registered on the
basis of a complaint lodged by the 2 nd respondent, who effected
divorce from the petitioner and is now having custody of the
minor victim. It is discernible from her complaint and the 161 as
well as 164 statements recorded as that of the victim that the
petitioner used to touch on the hair of the minor victim and
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fondle on his cheek and thigh. The further allegation is that, the
petitioner also touched on his organ used for urination. The same
is the basis on which the entire case runs, on the premise that the
petitioner committed offences as alleged. In fact, no complaint
lodged as on 12.5.2018 even though such an occurrence had
happened and the complaint was registered by the 2 nd respondent
only on 18.5.2018, after 6 days. The sexual assault alleged is at
the court premises while the petitioner was holding interim
custody as per the order of the Family Court, for limited hours. In
fact, the allegation levelled against the petitioner to the effect that
he had committed sexual assault on the minor victim when he got
custody for limited hours on 12.5.2018 seems to be not digestible
to prudence. To put it otherwise, this is a case where the 2 nd
respondent was already divorced from the petitioner and
according to her, she conceived with the aid of donor's sperm and
the victim was born through IUI method. With regard to those
aspects, this Court could not say a final word. But the case stems
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from filing of O.P.No.35/2015 by the petitioner for getting
custody of the minor child and the allegation in particular is
during the interim custody. In fact, what emerges is that the
allegations are an afterthought at the instance of the 2 nd
respondent to defeat the case of the petitioner, prima facie.
19. In such view of the matter, it is difficult to hold prima
facie that the prosecution case is believable in the context of the
facts discussed. Therefore, I am of the view that the matter would
require quashment.
In the result, this petition is allowed. All further proceedings
in S.C.No.998/2020 on the files of the Additional Sessions Court
(PoCSO),Thiruvananthapuram, arising out of Crime
No.960/2018 of Vanchiyoor Police Station, Thiruvananthapuram,
against the petitioner herein, stand quashed.
Sd/-
A. BADHARUDEEN
JUDGE
Bb
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APPENDIX OF CRL.MC.1861/2023
PETITIONER'S ANNEXURES
ANNEXURE-A PHOTOCOPY OF THE FIR IN CRIME
NO.960/2018 OF VANCHIYOOR POLICE
STATION
ANNEXURE-B PHOTOCOPY OF THE JUDGMENT DATED
27/06/2014 IN O.P.(HMA)NO.1922/2013 OF
THE FAMILY COURT
ANNEXURE-C CERTIFIED COPY OF THE FINAL REPORT IN
CRIME NO.960/2018 OF VANCHIYOOR POLICE
STATION
ANNEXURE-D PHOTOCOPY OF THE STATEMENT OF THE VICTIM
RECORDED UNDER SECTION 164 OF CR.P.C., IN
VANCHIYOOR POLICE STATION CRIME NO.960/2018
ANNEXURE-E PHOTOCOPY OF THE VISITORIAL REGISTER OF THE
FAMILY COURT, THIRUVANANTHAPURAM AND THE
JUDGMENT ALONG WITH PETITION IN
O.P.NO.35/2015 OF THE FAMILY COURT,
THIRUVANANTHAPURAM.
ANNEXURE-F PHOTOCOPY OF THE PETITION FILED BY THE
PETITIONER AND 2ND RESPONDENT JOINTLY BEFORE
THE FAMILY COURT, THIRUVANANTHAPURAM IN O.P.
RESPONDENTS' ANNEXURES
ANNEXURE R2(A) A TRUE COPY OF THE INFERTILITY CASE
RECORD ISSUED BY K.J.K. HOSPITAL,
TRIVANDRUM
ANNEXURE R2(B) A TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE 2ND RESPONDENT HEREIN
BEFORE THE FAMILY COURT,
THIRUVANANTHAPURAM IN O.P(G AND W) NO.
35 OF 2015
