Pavithran Koroth v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 9[TH] DAY OF DECEMBER 2021 / 18TH AGRAHAYANA, 1943 CRL.REV.PET NO. 264 OF 2020** **CRIME NO.1287/2018 OF Thaliparamba Police Station, Kannur SC 108/2019 OF ADDL. SESSIONS COURT-I (SPECIAL COURT FOR TRIAL OF OFFENCES UNDER POCSO ACT), KANNUR** ## **REVISION PETITIONER/ACCUSED NO.5** PAVITHRAN KOROTH, AGED 57 YEARS S/O.O.V.KANNAN, SHALINI HOUSE, KAYARALAM AMSOM, ARIMBRA, NEAR MULLAKKODE UP SCHOOL, TALIPARAMBA, KANNUR DISTRICT. BY ADVS. B.MUHAMMED SHAHEEL NICHOLAS JOSEPH ## **RESPONDENT/STATE** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNKULAM-682031. SMT.AMBIKA DEVI , SPL. PP THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23.11.2021, THE COURT ON 09.12.2021 DELIVERED THE FOLLOWING: Crl.R.P.264 of 2020 2 ## ORDER Dated : 9[th] December, 2021 1. This Revision Petition has been filed against the order in Crl.M.P.No.6131/2019 in S.C.108/2019 dated 30.11.2019 on the file of Special Judge of Trial of offences under the PoCSO Act, Thalassery. Petitioner is the fifth accused in Crime No.1287/2018 of Thaliparamba police station which has been registered for the offence punishable under Sections 363, 370(4), 370(A)(1), 366(A), 354, 354(A), 354(B), 376(D), 118, 109 of the Indian Penal Code and Sections 4 r/w3(a), 6 r/w 5(g), 17 r/w 16(3), 21(1) r/w 19(1) of the Protection of Children From Sexual Offences act, 2012 (PoCSO Act). 2. Petitioner originally filed Crl.M.C.448/2019 before this Court to quash the proceedings against him. As per the order dated 8.7.2019 this Court disposed of the petition directing the petitioner to file appropriate application before the trial court to discharge the petitioner. Accordingly the present petition has been filed. 3. The prosecution case is that on 19.11.2018 first accused Crl.R.P.264 of 2020 3 induced the de facto complainant a 16 year old minor girl to go with him in order to sexually abuse her and with the intention of supplying her to his colleagues accused 2 to 4 and also to subject her to illicit sexual intercourse. Thereafter second and third accused booked room Nos.201 and 204 in Parassinikkadavu lodge situated near Sri.Muthapan Temple. Thereafter on 19.11.2018 at about 9 am while the victim was about to proceed to school first accused contacted over phone and took her from Ganapathay temple, Puthiyatheruvu in his Mahindra car bearing registration No.KL-13AB-505 and thereafter to room No.201 of the above stated lodge and subjected her to sexual intercourse. Thereafter second, third and fourth accused also had sexual intercourse with the minor victim and after the incident accused 1 to 3 took her in KL 13 BQ Temp 5970 car and dropped her near Capital Mall, thereby accused Nos 1 to 4 committed the offence punishable under Section 363, 366(A), 354, 354(B), 376(D), 118, 109 of the Indian Penal Code and Sections 4 r/w 3(a), 6 r/w 5(g), 17 r/w 16(3), 21(1) r/w 19(1) of the PoCSO Act. To facilitate the above act by accused Nos. 1 to 4, fifth accused knowingly arranged and Crl.R.P.264 of 2020 4 helped them and also in spite of his knowledge of having been committed such an offence, failed to intimate Special Juvenile Unit or Local Police and thereby 5[th] accused committed the offence punishable under Sections 118, 109, 376(D), S.17 r/w 16(3), 21 r/w 19(1) of the PoCSO Act. 4. Heard both sides. 5. According to the learned counsel for the petitioner, petitioner was not an accused at the time of lodging the FIS and only on a subsequent statement (Annexure-A7) given by the victim that she had seen a bearded person sitting in the reception of the lodge and accused No.1 smiled to that person, he has been implicated as an accused in this case. It is also his contention that though the prosecution would contend that the victim girl was wearing the uniform bottom, the evidence collected by the prosecution would show that the victim was wearing a designed leggings at the time of incident which has been seized and hence there is no occasion for him to identify the victim as a minor. He would also contend that the room was booked by accused Nos.2 and 3 and there was no occasion for him to know that a minor or student. victim would be brought to the lodge Crl.R.P.264 of 2020 5 and there is also no material produced from the side of the prosecution to show that accused 1 to 4 have got any acquaintance with the petitioner. It is also the contention of the counsel that the petitioner has got two daughters and due to the false implication in this crime, the future of his daughters will be in peril. Hence he seeks for an interference at the instance of this Court. 6. The learned Public Prosecutor on the other hand would contend that the learned Sessions Judge has discussed the entire aspects in detail and has come to a right conclusion that prima facie there are material to attract the offence as alleged against the petitioner and according to the learned Special Prosecutor, the petitioner is not an innocent receptionist as has been contended by him. 7. As rightly contended by the learned counsel, one of the materials relied on by the prosecution to inculpate the petitioner as an accused is the statement of the victim which is produced as Annexure-A7, recorded on 5.12.2018 wherein the victim stated that while the first accused took her to the lodge a bearded man aged about 50 years was in the reception and Crl.R.P.264 of 2020 6 while going to the room, first accused smiled at him. That according to the learned counsel, is quite insufficient to add the petitioner as an accused for abetment of commission of a serious offence which has been alleged against accused 1 to 4. 8. On going through the records, it is seen that the FIR which is produced as Annexure-A4 would go to show that the incident occurred in between 13.11.2018 to 19.11.2018 and the alleged incident was on 19.11.2018 and the crime was registered on - 3.12.2018. While giving the FIS the victim did not give any mention with regard to the involvement of the petitioner/5[th] accused or his presence at the reception and in Annexure-A7 statement, she has given the statement inculpating the petitioner. So also the allegation in the prosecution records as well as in the prosecution charge would prima facie show that the prosecution allegation itself is that second and third accused booked the rooms in the lodge. So prima facie as contended by the learned counsel for the petitioner, there must not have any occasion for the petitioner the receptionist to know that the victim will be brought by the first accused to the lodge. 9. Prosecution has also got a contention that the victim was Crl.R.P.264 of 2020 7 wearing bottom of school uniform and only top was changed and thereby the petitioner could have got information that she is a student. But the learned counsel in this context would contend that the seizure mahazar of the dress worn by the victim which has been produced by her and seized as per seizure mahazar would show that she has produced blue leggings and churidar top. So, that according to the learned counsel, would indicate that she was not wearing the uniform while coming to the lodge. The learned counsel also bring to my attention Anneuxre-A9 which is a further statement given by her on 5.12.2018 wherein she has made a specific reference regarding the production of blue leggings and churdiar top and also the underwear to the Dy.S.P. So that would indicate that she was not wearing the bottom of uniform while reached the lodge. 10. So the question is whether there is prima facie any material to attract the offence of abetement as provided under Section 107 IPC against the petitioner. The statement given by the victim that she saw the first accused smiling at the person standing in the reception is the only material now relied by the prosecution to array the petitioner as an accused in this serious Crl.R.P.264 of 2020 8 ## crime. ## 11. In this context it is relevant to quote Section 107 IPC which reads as follows :- “Abetment of a thing.—A person abets the doing of a thing, who— (First) — Instigates any person to do that thing; or (Secondly) - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) — Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. 12. In order to attract the offence under Section 107 it would be necessary that he should have instigated any person to do the act or engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Intentionally aids, by any act or illegal omission, the doing of that thing. 13. As per Explanation 1 — a person who, by wilful Crl.R.P.264 of 2020 9 misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing, and Explanation-2 would further provide that a person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. 14. The learned counsel for the petitioner in this context bring to my notice **Gurcharan Singh vs The State Of Punjab (AIR 2020 SC 4714 = 2020 (10) SCC 200 = 2020 KHC 6567).** Paragraph 15 of the said decision is relevant to be quoted which reads as follows :- “As in all crimes, _mens rea_ has to be established. To prove the offence of abetment, as specified under Sec 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove _mens rea_ , there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly Crl.R.P.264 of 2020 10 present but has to be visible and conspicuous. However, what transpires in the present matter is that both the Trial Court as well as the High Court never examined whether appellant had the mens rea for the crime, he is held to have committed. The conviction of Appellant by the Trial Court as well as the High Court on the theory that the woman with two young kids might have committed suicide, possibly because of the harassment faced by her in the matrimonial house, is not at all borne out by the evidence in the case. Testimonies of the PWs do not show that the wife was unhappy because of the appellant and she was forced to take such a step on his account.” 15. In order to attract the offence, the state of mind to commit a particular mind must be there to determine the culpability. So in order to prove that the petitioner has got _mens rea_ along with accused Nos.1 to 4 to do the act, there should have some material on record to show that the petitioner had a guilty mind and in furtherance of that mind, he abetted the commission of such act by accused Nos.1 to 4. Here the entire prosecution records is silent about the previous acquaintance of accused 1 to 4 with the petitioner/5[th] accused who is only a receptionist in the lodge. The only statement of the victim that the first accused while she was going along with him to the room smiled at the receptionist will not in any way prima facie indicate any Crl.R.P.264 of 2020 11 mens rea on his part so as to attract the offence under Section 107 especially in the absence of any other material in connection with the 5[th] accused collected by the prosecution. 16. The learned counsel for the revision petitioner relies upon **Union of India v. Prafulla Kumar Samal and Anr. (1979 (3)** **SCC 4).** Paragraph 10 of the said judgment reads as follows: 10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: 1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. 2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. 3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. 4) That in exercising his jurisdiction under Section 227 of the Code the judge which under the present Code is a senior and Crl.R.P.264 of 2020 12 experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 17. The function of Judge while considering an application under Section 227 of Cr.P.C. for discharge was being dealt with in **Dilawar Balu Kurane v. State of Maharashtra (2002(2)SCC 135).** Paragraph No.12 of the said judgment is relevant to be extracted which reads thus: “12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceed with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge Crl.R.P.264 of 2020 13 the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. [See Union of India versus Prafulla Kumar Samal & Another (1979 3 SCC 5)].” ## 18. In paragraph No.21 of **Sajan Kumar v. Central Bureau** **of Investigation (2010 (9) SCC 368)** the principle that has to be followed while exercising jurisdiction under Sections 227 and 228 Cr.P.C. has been dealt with in detail which reads thus: “ 21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. Crl.R.P.264 of 2020 14 (iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Crl.R.P.264 of 2020 15 Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 19. In **Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Others (1979 (4) SCC 274),** the matters to be considered while dealing with Sections 226 and 227 Cr.P.C. has been dealt with. Para No.18 of the said judgment is relevant to be quoted which reads thus: 18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in **State of Bihar** v. **Ramesh Singh** , the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence. Crl.R.P.264 of 2020 16 20. In this case, prosecution could not produce any material to show that the petitioner instigated accused Nos.1 to 4 to do the act, or engaged in any conspiracy with accused Nos.1 to 4 for doing the act and out of that conspiracy he illegally omitted to do anything for enabling accused Nos.1 to 4 to do the alleged act attributed against them. Prosecution has no case that the petitioner hatched any criminal conspiracy with accused Nos.1 to 4 in doing the alleged act. Prima facie no material seen collected by the prosecution to prove any previous acquaintance of A1 to A4 with the petitioner. The smile of the first accused at the petitioner while going with the victim may at the most give rise to some suspicion but not any grave suspicion regarding the abetment of the act by the accused which as per the settled law, is sufficient for the petitioner to get a discharge. 21. Petitioner has been further charged under Section 21(1) r/w 19(1) of the PoCSO Act. As per Section 19 notwithstanding anything contained in the Code of Criminal Procedure, 1973 any person (including the child) who apprehends that an offence under the Act is likely to be committed or has knowledge that such an offence has been committed, shall provide such Crl.R.P.264 of 2020 17 information to Special Juvenile Police Unit or the Local police. 22. So prosecution must prima facie establish that the petitioner herein has apprehension that an offence under the Act is likely to be committed or has knowledge that such an offence has been committed. So the question is whether the prosecution could bring in prima facie material to substantiate the above allegation. As found earlier, the only ingredient which the prosecution could collect is the smile alleged to have been made by the first accused to the petitioner while going to the room, as per the subsequent statement given by the victim. It has already been discussed that at the time when she came to the lodge as per her statement, she was wearing blue coloured leggings and top. Though prosecution has got a case that she was wearing bottom of uniform, that is not borne out as per the statement of the victim and the dresses which had been produced and seized by the police. It has also been found already, that the rooms were booked by accused Nos.2 and 3. So in a room which has already been booked by two persons if two inmates are going to occupy, it cannot prima facie be expected that the receptionist sitting or standing in the Crl.R.P.264 of 2020 18 reception could have any apprehension of any offence under the Act, is likely to be committed and the statement of the victim also would go to show that after the incident, she went along with accused Nos.1 to 3 in a vehicle and there is no case for the prosecution that the victim has given any information regarding the offence committed by accused Nos.1 to 4 to the petitioner. Prosecution also has no case that the petitioner was present at the reception while accused Nos.1 to 3 returning from the lodge along with the victim. So without getting any information, it cannot be presumed that the petitioner has knowledge that offence has been committed by accused Nos.1 to 4. 23. Duties of the receptionist in a lodge or hotel also cannot be expanded to such an extent without prima facie any material to show any previous acquaintance or previous meeting of mind or any criminal conspiracy. So the fact that the statement of the victim that the first accused smiled at the petitioner while going to the room in the lodge, may, at the most create some suspicion but not any grave suspicion regarding the apprehension that an offence under this Act is likely to be committed or knowledge that such an offence has been Crl.R.P.264 of 2020 19 committed, but it will not create any grave suspicion regarding the apprehension or the knowledge upon the petitioner. So the petitioner is entitled for discharge for the offence under Section 19(1) r/w 19(1) of the PoCSO Act also. 24. In the result, Crl.R.P. allowed. Order in Crl.M.P.6131/2019 is hereby set aside and Crl.M.P.6131/2019 stands allowed and petitioner/5[th] accused in S.C.108/2019 is discharged. M.R.Anitha, Judge Mrcs/3.12. Crl.R.P.264 of 2020 20 ## **APPENDIX OF CRL.REV.PET 264/2020** |PETITIONER ANNEXURE|| |---|---| |ANNEXURE A1|TRUE COPY OF THE ORDER DATED 30.11.2019| ||PASSED BY THE ADDITIONAL DISTRICT AND| ||SESSIONS JUDGE-I (SPECIAL JUDGE FOR THE| ||TRIAL OF OFFENCES UNDER POCSO ACT),| ||THALASSERY IN CRL.M.P.NO.6131/2019 IN SC| ||108/2019.| |ANNEXURE A2|THE TRUE COPY OF THE ORDER DATED 08.07.2019| ||PASSED BY THIS HON'BLE COURT IN| ||CRL.M.C.NO.4483/2019.| |ANNEXURE A3|THE TRUE COPY OF THE FINAL REPORT DATED| ||31.01.2019 IN CRIME NO.1287/2018 OF| ||TALIPARAMBA POLICE STATION, KANNUR DISTRICT| ||PENDING BEFORE THE ADDITIONAL DISTRICT AND| ||SESSIONS JUDGE-I, THALASSERY AS SC| ||108/2019.| |ANNEXURE A4|THE TRUE COPY OF THE FIR DATED 03.12.2018| ||IN CRIME NO.1287/2018 OF TALIPARAMBA POLICE| ||STATION, KANNUR DISTRICT.| |ANNEXURE A5|THE TRUE COPY OF THE FIRST INFORMATION| ||STATEMENT GIVEN BY THE DEFACTO COMPLAINANT| ||BEFORE THE CIRCLE INSPECTOR VANITHA CELL| ||KANNUR ON 03.12.2018 IN CRIME NO.1287/2018| ||OF TALIPARAMBA POLICE STATION, KANNUR| ||DISTRICT.| |ANNEXURE A6|FURTHER STATEMENT OF THE DEFACTO| ||COMPLAINANT DATED 04.12.2018 IN CRIME| ||NO.1287/2018 OF TALIPARAMBA POLICE STATION,| ||KANNUR DISTRICT.| |ANNEXURE A7|FURTHER STATEMENT OF THE DEFACTO| ||COMPLAINANT DATED 05.12.2018 IN CRIME| ||NO.1287/2018 OF TALIPARAMBA POLICE STATION,| ## Crl.R.P.264 of 2020 ## 21 ||KANNUR DISTRICT.| |---|---| |ANNEXURE A8|FURTHER STATEMENT OF THE DEFACTO| ||COMPLAINANT DATED 05.12.2018 IN CRIME| ||NO.1287/2018 OF TALIPARAMBA POLICE STATION,| ||KANNUR DISTRICT.| |ANNEXURE A9|FURTHER STATEMENT OF THE DEFACTO| ||COMPLAINANT DATED 05.12.2018 IN CRIME| ||NO.1287/2018 OF TALIPARAMBA POLICE STATION,| ||KANNUR DISTRICT.| |ANNEXURE A10|FURTHER STATEMENT OF THE DEFACTO| ||COMPLAINANT DATED 21.01.2019 IN CRIME| ||NO.1287/2018 OF TALIPARAMBA POLICE STATION,| ||KANNUR DISTRICT.|