XXXXXXXXXX vs State Of Kerala

A. Badharudeen, J

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, by the petitioner herein, who is the accused in Crime No.636/2018 of Chakkarakkal police station, Kannur, now pending as S.C.No.893/2019 on the files of the Sessions Court, Thalassery and the prayer herein is as under:

To Quash Annexure A1 FIR No.636/2018 of the Chakkalakkal  Police  Station,  Kannur  District  and Annexure  A2  Final  Report  in  S.C.No.893/2019 of District and Sessions Court, Thalassery, Kannur District.

Heard the learned counsel for the petitioner, the learned counsel appearing for the de facto complainant and the learned Public Prosecutor. Perused the relevant records.

The prosecution case emanated pursuant to lodging of First Information Statement by the de facto complainant on 1.11.2018 before the Women Police Constable, attached to the Chakkarakkal police station, Kannur, alleging that, on a day during August, 2018, while the daughter and grand son of the de facto complainant gone for job at about noon, the accused, who is a neighbour of the de facto complainant, entered into the center hall of the house through the front door and closed the front door; and then he caught hold on the de facto complainant by force and taken her to the bedroom, though she resisted. She was subjected to molestation and forceful sexual intercourse, by removing her blouse, holding on her breast and putting his penis into her vagina. Accordingly, the prosecution alleges commission of offences punishable under Sections 450, 354B and 376 of the Indian Penal Code (for short, ‘the IPC’ hereinafter).

The learned counsel for the petitioner while canvassing quashment of the proceedings, vehemently argued that, even though the occurrence stated as one on a day during August, 2018, FIS was lodged at a belated stage only on 1.11.2018. He also submitted that, earlier as on 3.10.2018, the daughter of the de facto complainant filed Annexure A3 complaint before the women cell, Kannur and the police at the women cell conducted enquiry after endorsing the petition in the register of petitions at the women cell and as per the report, the allegation of persecution, at the instance of the accused, was found against her. He also submitted that, again, a similar complaint was filed and as per Entry No.1064/2018, the police officials of women cell found the allegations are false. He also relied on the statements of the Doctors viz., Dr.Ashish Bens and Dr.Gopinathan P., who treated the victim after the occurrence and submitted that, as per the statements of the Doctors also, no materials found out to see any sexual intercourse. Accordingly, it is submitted that the entire case is foisted and the same would require quashment.

Opposing quashment, the learned Public Prosecutor vehemently argued that, going by the allegations in the FIS, prosecution case alleging commission of offences punishable under Sections 450, 354B and 376 of the IPC, are specifically made out, prima facie and the statements of the Doctors, in fact, is pertaining to examination on 1.11.2018, i.e., after 3 months of the occurrence and accordingly, the Doctors stated that, on the date of examination, no evidence to see sexual intercourse noticed. According to the learned Public Prosecutor, the above statements also do not suggest specifically that there was no sexual assault, on the date of occurrence, as alleged by the prosecution. Therefore, the quashment prayer must fail, since the matter would require trial, permitting the prosecution to adduce evidence.

It is submitted by the learned counsel for the de facto complainant in tune with the arguments tendered by the learned Public Prosecutor that, the reason for the delay in filing complaint explained in the FIS and the same is to the effect that, even though the accused subjected the de facto complainant to sexual intercourse, the same was not disclosed to avoid shame to the family members and she stated the sexual assault to her daughter after few days of the occurrence. Thereafter, the accused threatened her and therefore, she decided to disclose the said occurrence also. The learned counsel also placed reliance on a decision of the Apex Court in Hariprasad @ Kishan Sahu v. State of Chhattisgarh reported in [2023 KHC 6980] with reference to paragraph No.10, stating that the delay in lodging an FIR by itself cannot be recorded as the sufficient ground to draw an adverse inference against the prosecution case, nor could it be treated as fatal to the case of prosecution. The Court has to ascertain the causes for the delay, having regard to the facts and circumstances of the case, if the causes are not attributable to any effort to concoct a version, mere delay by itself would not be fatal to the case of prosecution.

Reverting to the prosecution case, it is alleged that, on a day during August, 2018, while the daughter and grand son of the de facto complainant gone for job at about noon, the accused, who is a neighbour of the de facto complainant, entered into the center hall of the house through the front door and closed the front door; and then he caught hold on the de facto complainant by force and taken her to the bedroom, though she resisted. She was subjected to molestation and forceful sexual intercourse, by removing her blouse, holding on her breast and putting his penis into her vagina. Accordingly, the prosecution alleges commission of the above offences.

It is true that the occurrence was on a day during August, 2018 and the FIS was lodged after about 3 months. The reason for the delay in filing complaint was that, the occurrence was not disclosed to avoid shame to the family members. But, thereafter also, the accused threatened the de facto complainant and accordingly, she decided to disclose the same, which led to lodging of this FIR.

It is true that, in Annexure A3 complaint filed on 3.10.2018, no offence of rape or sexual molestation disclosed and the enquiry conducted by the women cell on the said complaint was in the negative. However, when an old age lady would allege that she was subjected to rape by the accused and thereafter also the accused threatened her, in such a case, quashment sought for merely on the ground of non-disclosure of this occurrence and the delay in lodging of Annexure A3 complaint, could not yield and the same are of no consequence. Therefore, quashment sought for would definitely fail, since there are prima facie materials to show commission of the offences by the accused, warranting trial.

In view of the matter, this Criminal Miscellaneous Case stands dismissed.

Registry is directed to forward a copy of this order to the Sessions Court, Thalassery, for information and further steps.