Musthafa vs State Of Kerala Represented By Public Prosecutor

A.Badharudeen, J

The sole accused in S.C. No.1131/2023 on the files of the Fast Track Special Court, Koyilandy, has filed this appeal, under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the conviction and sentence  imposed  by  the  Special  Judge,  against  him  as  per the judgment dated 07.04.2025. The State of Kerala, represented by the Public Prosecutor is arrayed as the respondent herein.

Heard the learned counsel for the appellant and the  learned  Public  Prosecutor,  in  detail.  Perused  the  verdict under challenge and the records of the Special Court.

Parties in this appeal shall be referred as‘accused’ and ‘prosecution’, hereafter.

The prosecution alleges commission of offences punishable under Section 363 of the Indian Penal Code [hereinafter  referred  as‘IPC’for  short]  and  under  Section  7 read with 8 of the Protection of Children from Sexual Offences Act [hereinafter  referred  as ‘POCSO Act’ for short], by the accused. The allegation of the prosecution is that, at about 04.30 p.m. on 21.07.2023, while the victim (PW1) was returning  from  school  on  foot,  the  accused  who  came  on  a scooter from Elokkara side offered a lift and made the victim board on his scooter and on the way ahead, the accused grabbed penis of the victim over his pants.

After framing charge for the offences  punishable under Section 363 of IPC as well as under Section 7 read with 8 of the POCSO Act, the Special Court recorded evidence and completed trial. During trial, PWs 1 to 11 were examined and Exts.P1  to  P14  were  marked  on  the  side  of  the  prosecution. Even though, the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1)(b) of the Code of Criminal Procedure [hereinafter referred as ‘Cr.P.C’ for short], he did not opt to adduce any defence evidence.

On appreciation of evidence, the Special Court found that the accused was guilty for the offences punishable under Section 363 of IPC as well as under Section 7 read with 8 of the POCSO  Act. Accordingly, the accused was convicted for the said offences and sentenced as under:

“1. The convict is sentenced to undergo Rigorous Imprisonment for a period of 2 years (Two years) and to pay a fine of Rs.5,000/- (Five Thousand only) u/s 363 of the Indian Penal Code and in default of payment of fine to undergo Rigorous Imprisonment for a further period of 1 month;

The convict is further sentenced to undergo Rigorous Imprisonment for a period of 3 years (Three years) and to pay a fine of Rs.10,000/- (Ten Thousand only) u/s 7 r/w 8 of the Protection of Children from Sexual Offences Act and in default of payment of fine to undergo Rigorous Imprisonment for a further period of 2 months;

The substantive sentences of imprisonment shall run concurrently;

The convict is allowed set off under section 428 CrPC from 12-09-2023 to 06-04-2025 (573 days). The period already undergone by him as an undertrial prisoner, from the substantive sentence of imprisonment;

Fine if paid shall be given to PW1, as compensation u/s 357(1)(b) of the Code of Criminal Procedure;

Issue committal warrant.”

While  assailing  the  verdict  impugned,  the  learned counsel for the accused submitted that, either in the FIS or in the  statement under  Section  164 of  Cr.P.C.  recorded  as  that of the victim, who got examined as PW1, the actual date of occurrence  was  not  disclosed  and  as  per  Ext.P1  statement, PW1 given statement to the Police that the incident happened  on  a day  in  between  21st and  25th of  July,  2023. Then, when the statement of PW1 under Section 164 of Cr.P.C.  was  recorded,  the  date  was  stated  as  in  July,  2023. Thereafter, during examination of PW1, he stated that the incident  was  on  21.07.2023.  Therefore,  this  anomaly  would create  doubt  on  the  prosecution  case.  Thus,  the  benefit  of doubt is to be adjudged in favour of the accused. The second contention  raised  by  the  learned  counsel  for  the  accused  is that, the accused was not properly identified. Thirdly, it is argued that, CW3, the father of the victim, though cited as a witness to prove the prosecution case, he was not examined and the said non-examination of CW3 is fatal to the prosecution. Accordingly, the learned counsel for the accused pressed for interference in the impugned verdict.

Whereas, it is submitted by the learned Public Prosecutor that, in this case, the evidence of PW1, supported by  the  evidence  of  PW2  and  other  witnesses,  categorically established  the  ingredients  for  the  offences  under  Sections 363 of IPC and under Section 7 read with 8 of the POCSO Act. Therefore, the learned Special Judge is right in entering into conviction  and  sentence  for  the  said  offences.  The  learned Public Prosecutor also submitted that since the sentence imposed for the offence punishable under Section 7 read with 8 of the POCSO Act is the statutory minimum, no reduction in the sentence is possible. Therefore, the learned Public Prosecutor opposed interference in the impugned verdict.

In view of the rival submissions, the points arise for consideration are:

Whether  the  Special  Court  is  justified  in finding that the accused committed the offence under Section 363 of IPC?

Whether  the  Special  Court  is  justified  in finding that the accused committed the offence under Section 7 read with 8 of the POCSO Act?

Whether the verdict of the Special Court would require interference?

Order to be passed?

Point Nos.1 and 2:- In this matter, the learned Special Judge mainly relied on the evidence of PW1 supported  by  the  evidence  of  PW2  and  other  witnesses  to find commission of the above said offences by the accused. PW1  deposed  that,  he  was  aged  15  years  and  his  date  of birth  was  on  20.04.2009.  This  aspect  has  been  proved  by the production of Ext.P9 birth certificate and Ext.P6 School admission register, brought in evidence through PW2. PW1 testified  further  that,  he  was  familiar  with  the  accused  by name  Musthafa  and  he identified the  accused at the  dock. PW1 also deposed that, the house of the accused is nearby his  house.  According  to  PW1,  the  occurrence  was  at  about 04.30 p.m. on 21.07.2023, after school time. PW1 deposed further that, after the school time, while he was walking towards his house, the accused reached there in a bike from Elokkara side and PW1 described the nature of the bike as Access scooter. Then, the accused stopped the vehicle nearby him and offered a lift and stated that he would  be  dropped  nearby  his  house.  Accordingly,  PW1  got seated  in  the  scooter  as  a pillion  rider.  While  traveling  so, the accused put his left hand on the pants of PW1 and caught hold on his penis. Soon, he resisted the same. When the vehicle reached near a hump and the speed was lowered, he ran away and the occurrence according to him was  near  Elokkara–Pottenkunnu  Road.  According  to  PW1, after  the  incident,  when  he  met  the  accused  in  the  town, the  said  to  him  not  to  divulge  the  occurrence  to  anybody. However,  after  few  days,  there  was  an  awareness  class  in the school regarding POCSO laws and thereafter he disclosed  the same to  his mother,  who  was  examined as PW2. PW1 identified his signature in the FIS and he also given evidence that the statement was given by him. Even though, PW1 was subjected to searching cross-examination, nothing extracted to disbelieve his version.

PW2 is the mother of PW1. She deposed that the accused is her neighbour and the occurrence was divulged to her by PW1. She deposed about the occurrence as deposed by PW1. According to her, she shared the incident with her husband and informed the police. The police came to her house and recorded PW1's statement.

PW3  is  one  of  the  attesting  witnesses  in  Ext.P2 scene mahazar. He vouched his signature in Ext.P2 mahazar. PW4 is the MVI holding the Joint RTO's additional charge at SRTO Koduvally. He proved Ext.P3 registration particulars of the scooter bearing registration No. KL-57S/8115 issued to certify that the accused herein as the registered owner of the said scooter. PW5 is the Village Assistant attached to Eangapuzha Village Office who prepared  Ext.P4  site  plan.  She  testified  that  she  inspected the scene occurrence of this case and prepared Ext.P4.

PW6 is the Village Officer attached to Eangapuzha Village Office. He testified that, as per the requisition  of  the  Investigating  Officer,  he  authorised  PW5 to prepare the site plan. Accordingly, PW5 prepared Ext.P4 plan and he produced the same to the Investigating Officer.

PW7 is the ASI at Thamarasseri Police Station who attested Ext.P5 seizure mahazar (certified copy) whereby the SHO Thamarassery seized the scooter bearing No.  KL-57S/8115  produced  in  the  police  station  by  one  Mr. Siraj. He vouched his signature in Ext.P5.

PW8 is the then SHO at Thamarsseri Police Station who investigated Crime No.597/2023 (Another case pending against the present accused). He deposed that during  the  investigation  of  Crime  No.  597/2023,  he  seized the Scooter bearing No. KL-57S/8115 as per the original of Ext.P5 seizure mahazar.

PW9 is the WSCPO attached to Thamarasseri Police Station, who recorded Ext.P1 FIS of PW1. She also recorded his statements under section 161(3) of the Cr.P.C. PW10 is the additional witness who proved Ext.P6 extract of admission register.

PW11 is the Sub Inspector at Thamarasseri Police Station, who registered Ext.P7 FIR, investigated the case and laid the charge sheet. He had visited the scene of occurrence and prepared Ext.P2 scene mahazar. He had sent PW1 for the medical examination and obtained Ext.P8 report. He also obtained Ext.P9 birth certificate of PW1 from Thamarasseri Grama Panchayat. He had recorded the formal  arrest  of the  accused  who  was  languishing  in  jail  in connection with some other cases. Ext.P10 is the arrest memo he prepared while arresting the accused. He had sent the accused for potency examination and obtained Ext.P11 potency certificate. He submitted Ext.P12 report to the  Court  to  incorporate  the  correct  name  and  address  of the accused in case records. Ext. P13 is the report he submitted to  the court  to  incorporate  the correct  date of the  occurrence.  Ext.P14  is  another  report  he  submitted  to include the Scooter seized by police in Crime No. 597/2023, since the same Scooter was allegedly used by the accused for committing the offences in both cases. He interrogated the  witnesses.  After  concluding  the  investigation,  he  filed the final report.

As regards the non-disclosure of the actual date of occurrence in Ext.P1 (wherein the occurrence was stated in  between  21st and  25th July,  2023)  and  in  the  statement under  Section  164  of  Cr.P.C.  (wherein  the  occurrence  was stated as on July, 2023) is concerned, during the examination of the victim, he stated that, he did not disclose  the  actual  date  of  occurrence  in  Ext.P1  as  well  as 164 statement as he did not remember the date at the relevant time and thereafter, as he remembered that there was four days holidays after the occurrence. Accordingly, he got the actual date of occurrence and he had disclosed the actual date during his chief examination. This explanation offered by a minor witness is acceptable. Therefore,  the  challenge  raised  by  the  learned  counsel  for the accused as to non disclosure of actual date of occurrence in Ext.P1 or in the statement given under Section 164 of Cr.P.C. is found to be not having much significance to disbelieve the version of PW1 in the instant case. On totally weighing the evidence of PW1, the same is found to be wholly reliable. 19. Coming to the question of proper identification of the  accused,  in  fact,  in  this case  the  question  of  identity does not  arise  as  the  evidence  of  PW1  would suggest  that the accused is familiar to PW1 and he is a  nearby resident of his house. Further, he had given statement disclosing the name  of  the  accused  to  mark  the  identity  of  the  accused. Therefore, the said challenge also found to be untenable.

Regarding non-examination of CW3, the father of the PW1 is concerned, in fact, initially PW1 disclosed about the occurrence to his mother and she got examined as PW2 and she supported the evidence of PW1. The knowledge of PW2  itself is  hearsay. The  knowledge  of CW3,  the father is the  version given  by  the  mother.  Therefore,  the  same  also is nothing but hearsay evidence. Thus, non-examination of CW3 is not at all fatal to the prosecution case.

Point Nos.3 and 4:- On re-appreciation of evidence, none of the contentions raised by the learned counsel for the accused to unsustain the verdict of the Special  Court  found  to  be  sustainable.  Therefore,  it  is  held that  the  Special  Court  is  right  in  finding  that  the  accused committed the offences punishable under Section 363 of IPC and under Section 7 read with 8 of the POCSO Act. Therefore, the conviction imposed by the Special Court does not require any interference.

Coming to the sentence, three years is the maximum sentence imposed upon the accused for the offence under Section 7 read with 8  of the POCSO Act and the  same  is  the  statutory  minimum  sentence  provided  for the offence under Section 7  read with 8  of the POCSO Act. Therefore, no reduction in sentence is legally permissible.

It is important to note that the accused is a habitual  offender  having involvement  in  four  more  cases, where he was convicted for twenty years, ten years etc. for the  offences  under  the  POCSO  Act  and  for  other  offences. The details of other cases against the accused are reported by the Superintendent, Central Prison and Correctional Home, Thavanur are extracted as under:

“1.SC.No. 1067/2023 on the file of the Hon'ble Fast Track Special Court, Koyilandy. He was convicted and sentenced asfollows:

Rigorous Imprisonment for a period of 10 years and a fine of Rs.10,000/- In default to undergo RI for 03 months under Section 377 IPC.

Rigorous Imprisonment for a period of 20 years and a fine of Rs.20,000/- In default to undergo RI for 06 months under Section 3(c) r/w 4(2) of the Protection of the Children from Sexual Offenses Act, 2012.

Rigorous Imprisonment for a period of 1 year and a fine of Rs.2,000/- In default to undergo RI for 01 month under Section 11(iii) r/w 12 of the Protection of the Children from Sexual Offenses Act, 2012.

SC.No. 1069/2023 on the file of the Hon'ble Fast Track Special Court, Koyilandy. He was convicted and sentenced asfollows:

Rigorous Imprisonment for a period of 2 years and a fine of Rs.5,000/- In default to undergo RI for 02 months under Section 363 IPC.

Rigorous Imprisonment for a period of 5 years and a fine of Rs.10,000/- In default to undergo RI for 03 months under Section 9(m) r/w 10 of the Protection of the Children from Sexual Offenses Act, 2012.

Rigorous Imprisonment for a period of 1 year and a fine of Rs.2,000/- In default to undergo RI for 01 month under Section 11(i) r/w 12 of the Protection of the Children from Sexual Offenses Act, 2012.

SC.No. 1198/2023 on the file of the Hon'ble Fast Track Special Court, Koyilandy. He was convicted and sentenced asfollows:

Rigorous Imprisonment for a period of 3 years and a fine of Rs.10,000/- In default to undergo RI for 03 months under Section 7 r/w 8 of the Protection of the Children from Sexual Offenses Act, 2012.

SC.No. 1199/2023 on the file of the Hon'ble Fast Track Special Court, Koyilandy. He was convicted and sentenced asfollows:

Rigorous Imprisonment for a period of 10 years and a fine of Rs.10,000/- In default to undergo RI for 01 month under Section 377 IPC.

Rigorous Imprisonment for a period of 20 years and a fine of Rs.20,000/-. In default to undergo RI for 02 months under Section 3(c) r/w 4(2) of the Protection of the Children from Sexual Offences Act, 2012.“

Therefore, reduction in sentence also is not possible. Accordingly, the verdict impugned does not require any interference and in such view of the matter, this appeal must fail.

In the result, this criminal appeal stands dismissed. All interlocutory applications pending in this appeal stand dismissed.

Since  the  accused  is  in  jail,  the  Registry  is  directed  to forward a copy of this judgment to the Superintendent, Central  Prison  and  Correctional  Home,  Thavanur,  forthwith, for information and compliance.