Initial allegations of sexual assault must be evaluated despite subsequent retractions, and proceedings cannot be quashed at this stage.

O R D E R

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure (`Cr.P.C’ for short), seeking to quash all further proceedings in S.C.No.599/2020 on the files of Additional Sessions Court, Kozhikode, arose out of Crime No.46/2019 of Thiruvambady Police Station, Kozhikode. The petitioner is the sole accused in this case.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents.

3. Here the prosecution alleges commission of offences punishable under Sections 354 of the Indian Penal Code (` IPC ' for short) as well as Sections 7 and 8 of the ( Protection of Children from Sexual Offences Act (`POCSO Act' for short). Crime was registered on the basis of the statement given by the victim on 30.01.2019. The specific allegation of the prosecution is that while the victim minor girl, aged 16 years, who was studying in Plus Two course at St.Joseph Higher Secondary School, was travelling in a private bus at 8.45 a.m on 29.01.2019, the accused, who is the conductor of the bus, while collecting bus charge, touched on her left breast, thereby she was sexually assaulted. Later she informed the same to the Principal of the school. Then the Principal informed the said occurrence to the police.

4. The learned counsel for the petitioner would submit that in the FIS given by the victim on 29.01.2019 it was stated that the bus occupied passengers in full and the victim was standing at the centre of the bus. The accused was engaged in giving tickets to the passengers and collecting money. When he moved near to the victim, the accused caught hold of her breast. But in the subsequent statement given on 30.01.2019, the victim stated that the complaint was filed at the instance of the teachers of the school and she did not want to continue the complaint. Accordingly it is argued by the learned counsel for the petitioner that none of the offences made out, as alleged by the prosecution, prima facie.

5. Opposing quashment, the learned Public Prosecutor would submit that in the FIS given by the victim it was stated that the accused caught hold of her left breast and thereby she was subjected to sexual assault. But in the subsequent statement she deviated slightly, when she was instructed to go for medical test as part of the investigation.

6. On perusal of the initial statement given by the victim on 29.01.2019, there is specific allegation that the accused caught hold of her left breast and the same was informed to the Principal. The Principal in turn informed the same to the police and crime was registered. But in the statement given on 30.01.2019, the victim stated that accidentally the conductor's hand touched on her breast and it was not intentional. In the 164 statement also, her version is that she felt that the accused while collecting bus charge touched on her breast. At a subsequent stage, the victim stated in deviation from the statement she had given on 29.01.2019.

7. On evaluating the statements of the victim, in the initial statement given on 29.01.2019, which led to registration of this crime, there is specific allegation that the accused, while engaged in issuing tickets and collecting charges from the passengers, caught hold of the breast of the victim and when she reached the school she informed the same to the Principal and the Principal in turn informed the same to the police and crime was registered. But when she had given statement on 30.01.2019, 31.01.209 and 08.04.2019 and (final date of recording the statement not discernible and it seems that the same was on 15.07.2019, after a period of 7 months) she retracted her previous statements. 8. Here as per the initial statement, the allegations attracting the offences are made out, prima facie. But the victim had given statements subsequently, as discussed herein above. In such a case, the accused can make use of the statements given by the victim retracting the previous statem