Crl.M.C. No. 2839 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 22[ND] DAY OF JUNE 2023 / 1ST ASHADHA, 1945 CRL.MC NO. 2839 OF 2022** **ORDER CMP NO.307/2022 IN SC 598/2020 OF FAST TRACK SPECIAL COURT, PERUMBAVOOR** ## **PETITIONER/VICTIM:** XXXXXXXXXX BY ADV N.P.PRAJEESH ## **- RESPONDENTS/COMPLAINANT STATE/PETITIOENR/ACCUSED:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 XXXXXXXXXX BY ADVS.S.RAJEEV S V.VINAY(K/355/2009), M.S.ANEER(K/644/2013) PRERITH PHILIP JOSEPH(K/000736/2015) SARATH K.P.(K/001467/2021), ANILKUMAR C.R. (K/001190/2020) SMT S REKHA SR PP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.2839/2022 -:2:- ## **O R D E R** Dated this the 22[nd] day of June, 2023 Annexure IV order passed by the Fast Track Special Court, Perumbavoor (for short 'the court below') is under challenge in this Crl.M.C. 2. The petitioner herein is the victim and the 2[nd] respondent is the accused in S.C.No.598/2020 pending on the file of the court below. The offences alleged against the 2[nd] respondent are punishable under Sections 354, 354 A(i), 354 B, 376, 376(2)(f)(i)(n) of IPC and Sections 3(a) read with 4, 5 (n) read with 6, 7 read with 8 and 9(l), (n) read with 10 of the Protection of Children from Sexual Offences Act and Section 75 of the Juvenile Justice (Care and Protection of Children) Act. 3. The petitioner/victim is none other than the daughter of the 2[nd] respondent/accused. The prosecution case in short is that the 2[nd] respondent sexually abused the petitioner during the period from January, 2015 to March, 2018 in the house where the petitioner, her mother and younger sister were residing. The Crl.M.C.No.2839/2022 -:3:- specific allegation is that the 2[nd] respondent, during night, when other family members were sleeping, used to enter into the bed room of the petitioner, forcefully disrobed her and thereafter satisfied his lust by penetrating his penis into her vagina. 4. The 2[nd] respondent appeared at the court below and was released on bail. When the case was posted for hearing on charge, the 2[nd] respondent filed Annexure III petition under Section 173(8) of Cr.P.C with a prayer to order further investigation. The court below after hearing both sides allowed Annexure III as per Annexure IV order. The said order is under challenge in this Crl.M.C. 5. In fact, this Court after hearing the learned counsel for the petitioner and the learned Public Prosecutor, allowed the Crl.M.C. on 21.7.2022, setting aside the impugned order dated 15.3.2022. Challenging the said order, the 2[nd] respondent approached the Supreme Court. The Honourable Supreme Court as per order dated 31.10.2022 dismissed the Special Leave Petition. However, an opportunity was given to the 2[nd] respondent to make an application to recall the order. Crl.M.C.No.2839/2022 -:4:- Accordingly, an application was filed to recall the order and it was allowed. 6. I have heard Sri.N.P. Prajeesh, the learned counsel for the petitioner, Sri. S. Rajeev, the learned counsel for the 2[nd] respondent as well as Smt. S. Rekha, the learned Senior Public Prosecutor. 7. The learned counsel for the petitioner submitted that the court below committed illegality in ordering further investigation invoking Section 173(8) of Cr.P.C. The counsel further submitted that the court below conducted a mini trial and entered into various findings which can be done only at the stage of final trial. On the other hand, the learned counsel for the 2[nd] respondent, Sri. S. Rajeev submitted that the final report would disclose that the victim was taken to various counselling centres and also before the psychologist and hence a psychological evaluation of the victim is absolutely necessary, which the investigating officer omitted to do. The learned counsel relied on the decision of this Court in _**Abhishek K.A. @ Bhanu v. State of Kerala**_ [2020 (5) KHC 47] in support of his submission. The Crl.M.C.No.2839/2022 -:5:- court below was absolutely justified in ordering further investigation in the facts and circumstances of the case, submitted the counsel. 8. Annexure III is the petition filed by the 2[nd] respondent before the court below seeking further investigation. In paragraph '4' of Annexure III, the 2[nd] respondent alleged that the final report would disclose that the victim was having psychological issues, but the investigating officer did not make any attempt to take the victim to an expert psychologist to analyse her mental state and the motives for giving statement against the 2[nd] respondent. According to the 2[nd] respondent, a psychological evaluation of the victim by an expert psychologist and analysis of her mental state is absolutely necessary to confirm whether the allegations levelled by her against him are true or imaginary. In short, as per Annexure III, the further investigation was sought by the 2[nd] respondent to conduct medical examination of the victim by an expert psychologist. 9. In the statement filed by the investigating officer at the court below, he categorically stated that during the course of Crl.M.C.No.2839/2022 -:6:- recording the statement of the victim under Section 161 of Cr.P.C or 164 of Cr.P.C or while medical examination of the victim was conducted by the doctor, or during the entire investigation, it was not revealed to the investigating officer that she had any kind of psychological issues or mental problems. It is also stated that the statement of the victim revealed that the facts stated by her was truthful version of the incident which was found to be true after thorough investigation. 10. The learned counsel for the 2[nd] respondent invited my attention to the FIS of the victim as well as the statement of the victim recorded under Section 164 of Cr.P.C and also the statement of the mother of the victim. True, those statements would show that the victim was taken for counselling on many occasions. Apart from the said statement, there is absolutely nothing on record to show that the victim was having any psychological issues at the time of the incident as alleged by the 2[nd] respondent. The 2[nd] respondent could not produce any material at the court below to substantiate his plea that the victim was suffering from psychological issues. It must be noted Crl.M.C.No.2839/2022 -:7:- that the 2[nd] respondent is none other than the father of the victim. If the victim had any such psychological issues, definitely, the 2[nd] respondent must be in a position to produce materials to substantiate the said plea. In short, no scrap of paper to suggest that the victim was suffering from any psychological issues or any mental disorder has been produced by the 2[nd] respondent. 11. The court below relied on the statement given by the victim under Section 161(3) of Cr.P.C that after her coaching classes at Pala, her mother found some changes in her and hence she was taken for counselling and during the course of counselling, she disclosed the fact of sexual abuse of her father to the counsellor. The court below also took note of the statement given by the mother under Section 161(3) of Cr.P.C that the victim was sent to counselling. It is quite normal that a small girl after facing such a sexual assault from her own father may show changes in her behaviour. It cannot be termed as mental illness or psychological disorder. The fact that the victim was taken to counselling cannot be a ground to presume that she was suffering from any mental illness or disorder. In _**Abhishek**_ Crl.M.C.No.2839/2022 ## -:8:- (supra), this Court issued various directions in exercise of power under Article 226 and 227 of the Constitution of India to the investigating officers who investigated the cases under the POCSO Act. One of the directions is that, the investigating officer shall ensure, before filing the final report in every case, that satisfactory evidence is collected to arrive at the conclusion as to the guilt or innocence of the accused, and if the case is built solely on the statement of the child, ensure also that the statement of the child is one voluntarily given, if necessary, by examining the audio/video recording of the statement and shall, if necessary, obtain the opinion from psychologist, psychiatrist and other experts in the field to ensure the correctness of the statements. 12. In the absence of any materials to substantiate the plea of the 2[nd] respondent that the victim was suffering from any mental illness or psychological disorder warranting psychological evaluation, that too at later stage, the court below ought to have rejected the plea for further investigation. Instead, a reading of the impugned order shows that the court below conducted a mini Crl.M.C.No.2839/2022 -:9:- trial and relied on certain other points which were not even argued by either parties to justify the order of further investigation. 13. The court below mainly relied on the statement of CW3, the sister of the victim, that she was never sexually abused by her father. The victim stated that CW3 was also sexually abused by the father. The court below held that in view of the statement given by CW3, denying the statement given by the victim, the investigating officer ought to have conducted investigation to ascertain the truth or otherwise of the said statement. The only question that arise for consideration is whether the victim was sexually assaulted by her father or not. Whether CW3 was sexually assaulted or not is not an issue arising for consideration in this case. The court below further found that the condition of hymen of the victim was not examined by the doctor and hence the condition of her hymen is absent in the medical certificate. At any rate, the medical certificate is before the court. The doctor was cited as witness also. The prosecution is free to examine the doctor at the time Crl.M.C.No.2839/2022 -:10:- of trial and substantiate its case. The court below also found that the extract of the school register where the victim studied was not seized or produced and the Headmaster of the school was not cited as a witness to prove the age of the victim. It is seen that the Registrar of Births and Deaths of the Angamaly Municipality is cited as a witness and the extract of the birth certificate issued by him has also been produced. The certificate under Section 65 B of the Evidence Act can be produced even later on as held by the Apex Court in _**Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Others**_ [(2020) 7 SCC 1]. For the reasons stated above, I am of the view that there are no sufficient grounds warranting order of further investigation. Accordingly, the impugned order stands set aside. Crl.M.C is allowed. Sd/- **DR. KAUSER EDAPPAGATH JUDGE** **kp** Crl.M.C.No.2839/2022 ## -:11:- ## **APPENDIX OF CRL.M.C 2839/2022** PETITIONER'S EXHIBITS ANNEXURE I PHOTOCOPY OF THE FIRST INFORMATION REPORT DATED 21.03.2020. ANNEXURE II PHOTOCOPY OF THE FIRST REPORT DATED 16.09.2020. ANNEXURE III PHOTOCOPY OF THE PETITION DATED 27.11.2021 FILED BY THE 2ND RESPONDENT. ANNNEXURE IV PHOTOCOPY OF THE ORDER PASSED BY THE FAST TRACK SPECIAL COURT, PERUMBAVOOR IN CRIMINAL MISCELLANEOUS PETITION NO.307/2022 DATED 15.03.2022. RESPONDENT ANNEXURES Annex-I A COPY OF THE ORDER PASSED BY THE HON'BLE APEX COURT IN SPECIAL LEAVE TO APPEAL (CRIMINAL) NO.9635/2022 DATED 3110-2022