The court assessed the applicability of the PoCSO Act in the context of actions undertaken by the accused and concluded that there was insufficient evidence of sexual intent.

ORDER

The petitioner, who claims to be the grandmother of the victim in Crime No.1528/2024 of Kodungallur Police Station, Thrissur, has filed this petition under Section 528 of BNSS, with a prayer to set aside Annexure A2 Final Report filed by the Kodungallur Police in the said case, which is now numbered as CC No.148/2025 on the files of Judicial First Class Magistrate Court, Kodungallur.

2. The accused in the aforesaid case is alleged to have entered into the bed room of the mother of CW1, a minor girl aged 13 years, at about 4 am on 24.10.2024, allegedly for having illicit relationship with the mother of CW1. At that time, CW1 is said to have woken up and seen the presence of the accused in the bedroom of her mother. Thereupon, the accused allegedly pushed CW1 aside and fled from that place. In connection with the aforesaid incident, the Kodungallur police has filed the Final Report alleging commission of offence under Sections 329(4), 115(2) and 74 of BNS.

3. In the present petition, the petitioner, who is the grandmother of CW1, would contend that the Investigating Agency had deliberately omitted the relevant provisions of the Protection of Children from Sexual Offences Act, 2012 (in short, ‘PoCSO Act’), in connection with the assault committed by the accused upon CW1. According to the petitioner, the statement given by CW1 would bring home the requirement of Section 7 read with Section 8 of the PoCSO Act. For the above reason, the petitioner seeks an order to set aside the Final Report filed by the Investigating Agency in the aforesaid case. The petitioner also seeks a further fair enquiry on the matter and the filing of a fresh Final Report incorporating the relevant provisions of the PoCSO Act. 4. Heard the learned counsel for the petitioner, the learned counsel for the 3rd respondent/accused and the learned Public Prosecutor representing the State of Kerala.

5. It is apparent from the facts and circumstances of the case, as revealed from the prosecution records, that the accused allegedly entered into the bedroom of the mother of CW1 for having illicit relationship with that lady. It is also undisputed that the minor girl(CW1) happened to witness the presence of the accused in the bedroom of her mother during the wee hours of 24.10.2024, and that when the accused realised that CW1 had witnessed his presence, he pushed CW1 aside and ran away. As per the First Information Statement given by CW1, as a result of the aforesaid act of the accused, she fell down and got injured upon her right knee. It is clear from the aforesaid statement of CW1 to the Investigating Officer that the alleged act of the accused pushing her aside was not done with sexual intent. But it was an act committed by him to facilitate his escape from that place. It is true that in the statement given by the child to the learned Magistrate, there is a stray remark that the aforesaid act of the accused pushing her aside was felt to her to be a bad touch. However, it is not possible to say that the remark in the above regard by CW1 in her statement given to the learned Magistrate would bring home the offence of sexual assault committed upon her by the accused. It is apparent from the words which CW1 had deposed before the learned Magistrate that the aforesaid act of the accused pushing her aside was part of his frantic move to leave that place, realising that CW1 and others happened to see his presence in the bedroom of the mother of the victim girl in the early hours of 24.10.2024. By no stretch of imagination, could it be said that the accused committed the aforesaid act with sexual intent. Therefore, there is absolutely no basis for the prayer in this petition to set aside the Final Report filed in this case and to direct further enquiry on