2022/KER/10071 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &

THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 25^TH DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943 CRA(V) NO. 36 OF 2019 AGAINST THE ORDER/JUDGMENT IN SC 104/2012 OF ADDITIONAL DISTRICT COURT &

SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN)

CP 5/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOCHI APPELLANTS:

1 JACOB JOSE, AGED 23 YEARS S/O. JOSE. V.G. CHERANALLOOR VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.

2 ANTONY JOSE,AGED 22 YEARS S/O. JOSE. V.G. CHERANALLOOR VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.

BY ADV M.REVIKRISHNAN RESPONDENTS:

1 ANTONY, AGED 37 YEARS S/O. AUGUSTINE, THAREPARAMBIL HOUSE, MALAMUTTAM ROAD, EDAKOCHI VILLAGE, ERNAKULAM DISTRICT 682 010.

2 STATE OF KERALA,, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.

BY ADVS.

SRI.P.M.JOSHI ADVOCATE GENERAL OFFICE KERALA SRI.T.S.NAZIMUDDIN V.JOHN SEBASTIAN RALPH V.JOHN THOMAS RALPH RETI JOHN SMT.AMBIKA DEVI S, SPL.G.P. (ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF W AND C)(GP-38)

THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 25.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

K. Vinod Chandran & C.Jayachandran,JJ.

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Crl.A.(V) No.36 of 2019 --------------------------------------

Dated, this 25^th February, 2022

JUDGMENT

Vinod Chandran, J.

Charity or perfidy is the question raised in the appeal where the prosecution alleged that the Managing Trustee of a charitable children's home sexually abused the children, left to his care. The learned Counsel for the appellants, who are the victims, submit that the children were admitted in the charitable home only by reason of the penury of the parents and the person in charge of the Home, under the cloak of a protector, turned predator. The respondent vehemently asserts that the prosecution is malicious and ill-motivated; a direct off shoot of the disputes pending in the Civil Court with respect to the administration of the Trust. The accused was acquitted of the charges by the trial court, against which the victims filed the above appeal. The allegation was that the appellants and other children, inmates of the Home were repeatedly subjected to sexual molestation by the Managing Trustee of the Trust under which the children's home is run.

2. Sri.M.Revikrishnan, learned Counsel appearing for the appellants point out that both the appellants examined as PWs.2 and 3 spoke of the atrocities committed on them. At least in the case of PW3 there is absolutely no contradiction and his evidence is fully corroborated by Ext.P14 medical report. The delay in raising a complaint is only because of the penurious condition in which the appellants were living. The appellants while they were in the Home were naturally, also intimidated by the authority wielded by the accused who was running the Home. The objection raised by the defence, regarding the period in which the appellants were housed in the Home, has been rendered unsustainable going by the evidence of PW15, Head Master (H.M) of the school in which the appellants studied. PW15 categorically stated that in the year 2006-07 the appellants were attending school from the Home and the period tallies with the time when the alleged acts were committed on the children. The time also tallies with the occurrence and continuation of the symptoms complained of by PW3; a direct result of the alleged molestation of sodomy.

3. The allegation raised of malicious prosecution is just to escape the clutches of law and the civil suits pending between the parties cannot lead to such a presumption. If the allegations, as spoken of by the victims, are found to be true, the civil disputes cannot be presumed to be the motive; to condone the dastardly acts committed by the accused on the minor children. Delay is natural in the settings in which the incident happened as also the circumstances of the pen