Abdul Shukkoor v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 CRL.REV.PET NO.59 OF 2021 AGAINST THE ORDER DATED 21.12.2020 IN CMP 3 OF 2020 IN SC 1235 OF 2018 ON THE FILES OF THE SPECIAL FAST TRACK COURT, ATTINGAL CRIME NO.1013/2018 OF KALLAMBALAM POLICE STATION,** ## **THIRUVANANTHAPURAM** ## **REVISION PETITIONER/PETITIONER/ACCUSED:** **ABDUL SHUKKOOR AGED 72 YEARS S/O. MUHAMMAD HANEEFA, SHAMIM LAND, NEAR JAGGI AUDITORIUM, KALLAMBALAM, KADAVOOR VILLAGE, THIRUVANANTHAPURAM - 695 605.** **BY ADVS. MINI.M.NAIR SRI.C.R.SIVAKUMAR** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **BY SMT SHEEBA THOMAS, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 18.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Revision Petition No.59 of 2021 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Revision Petition No.59 of 2021** **----------------------------------------------------------Dated this the 18[th] day of July, 2024** ## **O R D E R** This is a revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code). The petitioner challenges correctness, legality and propriety of the order of the Special Fast Track Court, Attingal dismissing his plea of discharge. 2. Heard the learned counsel for the appellant and the learned Public Prosecutor. 3. The petitioner is the sole accused in S.C.No.1235 of 2018. Final report was filed alleging that the petitioner has committed offences punishable under Sections 341 and 354A of the Indian Penal Code, 1860 (IPC) and Section 7 r/w 8, 11(1) r/w 12 and 18 of the Protection of Children from Sexual Offences Act, 2012 (PoCSO Act). 4. Two incidents are alleged against the petitioner. The second incident was on 21.07.2018 and the first incident 3 Crl.Revision Petition No.59 of 2021 was about one year before. As narrated in the final report, the first incident occurred while the victim girl aged 15 years was learning to ride a bicycle on a public road. The petitioner held the handle over her fist with sexual intent and he allegedly restrained her from proceeding further. At 7.45 a.m. on 21.07.2018, the victim was proceeding to the bus stop from where she had to board her school bus. The petitioner approached her, wrongfully restrained her and told her “മലയ��യ� വലത��ല��.” It is also alleged that the petitioner tried to hold her hand with sexual intent. 5. The learned counsel for the petitioner submits that the trial court did not consider the facts that the petitioner is a person aged 76 years, who was suffering from dementia and other diseases, while appreciating the contentions concerning improbability of such occurrences. It is the submission of the learned counsel that considering the age of the petitioner and his close acquaintance with the family members of the victim, even if the overt acts mentioned by the victim had occurred, it would not amount to any sexual offence as alleged. 4 Crl.Revision Petition No.59 of 2021 6. The learned counsel for the petitioner invited my attention to the F.I.statement and the statement under Section 164 of the Code given by the victim, and pointed out the variations. It is submitted that the first incident was not complained of. When the second incident occurred, which was one year after, ie. on 21.07.2018, only a complaint was lodged. That by itself shows that the allegations are false. 7. In **State of Bihar v. Ramesh Singh [AIR 1977 SC 2018]** the Apex Court held that at the stage of framing charge, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. At that stage, the truth, veracity and effect of the evidence, which the prosecution proposes to adduce, are not to be meticulously judged. It is also unnecessary to weigh the probable defence of the accused. The view taken by the Apex Court in **Stree Atyachar Virodhi** **Parishad v. Dilip Nathumal Chordia and another [(1989)** **1 SCC 715]** is that the court need not conduct an elaborate enquiry in sifting and weighing of the evidence at the time of 5 Crl.Revision Petition No.59 of 2021 framing charge. It is also not necessary to delve into various aspects. All that the court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. In **Union of India v. Prafulla Kumar Samal and another [(1979) 3 SCC 4]** the Apex Court held that where the materials disclosed grave suspicion against the accused, which has not been properly explained, the court would be justified in framing a charge against the accused. In **Soma Chakravarty** **v. State through CBI [(2007) 5 SCC 403]** the Apex Court reiterated the said view by holding that when there exists a strong suspicion, a charge can be framed. It was also cautioned that a mere suspension as distinguished from grave suspicion is not enough to frame a charge. 8. In **State of Gujarat v. Dilipsinh Kishorsinh Rao (MANU/SC/1113/2023]** , the Apex Court held that at the stage of considering an application for discharge, the court shall proceed on an assumption that the material which has been brought on record by the prosecution is true and 6 Crl.Revision Petition No.59 of 2021 evaluate such materials in order to determine whether the facts emerging from the materials taken on its face value disclosed the existence of the ingredients necessary of the offences alleged. 9. Therefore, what is possible now is to proceed as if the allegations contained in the final report and the materials produced therewith are true. If such allegations and assertions would not constitute an offence, certainly the petitioner is entitled to get a discharge. The first incident had occurred while the victim was learning to ride bicycle on a public road. What was done by the petitioner is that he held the handle of the bicycle over her fist. There is no allegation that she was not allowed to proceed further. It is seen from the assertions in the F.I.statement and also the statement under Section 164 of the Code that the petitioner only told her that he was also proceeding the same direction, but she wanted to go back and he did not restrain. From the said narration, it cannot be said that the petitioner had caused any wrongful restraint as defined under Section 239 of the IPC. 7 Crl.Revision Petition No.59 of 2021 Nor that, the said acts would amount to an act having the effect of outraging the modesty of the victim. Based on that allegation no charge for the offence punishable under Sections 341 or 354A of the IPC or any of the offences under the PoCSO Act could be framed. 10. As regards the second incident, which occurred on 21.07.2018, the contention of the learned counsel for the petitioner is that such an incident was quite improbable, especially when the petitioner is a person aged above 76 years and having ailments. He is a person known to the victim and her parents even before. It is also submitted that there existed some rent related dispute between the petitioner and the relatives of the victim. Therefore, it is submitted that there is no sufficient ground to proceed against the petitioner. 8. I am afraid, the age of the petitioner, his illness or his acquaintance with the victim and her relatives are grounds, which can be considered at this stage. What can be considered is whether the allegations emerging from the materials produced by the prosecution before the court would 8 Crl.Revision Petition No.59 of 2021 make out sufficient grounds for framing a charge for any of the alleged offences. If the incident on 21.7.2018 had occurred as alleged, that would constitute an offence of sexual harassment as defined under Section 11 of the PoCSO Act. There is no allegation that on that day the petitioner touched the body of the victim or had physical contact with her body. Allegation is only that the petitioner said sexually coloured words. When the victim was not touched by the petitioner on that day, there cannot be a charge for the offence under Section 7, which is punishable under Section 8 of the PoCSO Act or an attempt to commit such an offence. However, the aforementioned act certainly amounts to an offence of sexual harassment as defined in Section 11(i) of the PoCSO Act. When the ingredients of offence under Section 11(i) of the PoCSO Act are made out, the same would amount to an offence punishable under Section 354A(iv) of the IPC also. 11. In view of what are stated above, the petitioner is liable to be tried for the offences punishable under Sections 11(i) read with 12 of the PoCSO Act and Section 354A(iv) of 9 Crl.Revision Petition No.59 of 2021 the IPC. In regard to the other offences, namely, offences punishable under Section 341 of the IPC and Sections 7 r/w 8 and 18 of the Act the petitioner is entitled for a discharge. 12. The revision petition is therefore allowed in part. The petitioner is discharged of the offences punishable under Sections 341 of the IPC and Sections 7 r/w 8 and 18 of the PoCSO Act. The trial court shall frame a charge for the offences punishable under Section 354A(iv) of the IPC and Section 11(i) r/w 12 of the PoCSO Act and try him in accordance with law. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr