IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V &

THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN TH TUESDAY, THE 18 DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946 CRL.A NO. 1536 OF 2018 AGAINST THE JUDGMENT DATED 29.11.2018 IN SC NO.652 OF 2013 OF ADDITIONAL SESSIONS COURT-I, ALAPPUZHA (SPECIAL COURT FOR TRIAL OF OFFENCES UNDER POCSO ACT & CHILDREN’S COURT, ALAPPUZHA)

APPELLANT/ACCUSED:

MUHAMMED KUNJU, AGED 54 YEARS S/O YUSU KUNJU, PUNNAKUZHIYIL HOUSE, THEKKUKOCHU MURI, KRISHNAPURAM VILLAGE, ALAPPUZHA DISTRICT.

BY ADVS.

SRI.P.VIJAYA BHANU (SR.)

SRI.P.M.RAFIQ SRI.V.C.SARATH SRI.M.REVIKRISHNAN SRI.AJEESH K.SASI SRI.VIPIN NARAYAN SMT.POOJA PANKAJ SRUTHY N. BHAT RESPONDENT/COMPLAINANT/STATE:

1 THE INSPECTOR OF POLICE, KAYAMKULAM, ALAPPUZHA DISTRICT-688012.

2 STATE OF KERALA, (RESPONDENTS 1 AND 2 REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

BY RENJITH T.R, SENIOR PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON

18.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

J U D G M E N T

Raja Vijayaraghavan, J.

The above appeal is directed against the judgment dated 29.11.2018 in S.C.

No.652 of 2013 on the file of the Additional Sessions Court-I, Alappuzha (Special Court for Trial of Offences under POCSO Act & Children’s Court, Alappuzha).

2. In the aforesaid case, the appellant, a 48-year-old male, was charged for having committed the offences punishable under Sections 450 and 376(1) of the Indian Penal Code. By the impugned judgment, the appellant was sentenced to undergo:

a) Rigorous Imprisonment for seven (7) years and to pay a fine of Rs.1,00,000/-, with a default clause for the offence under Section 450 of the IPC.

b) Imprisonment for life and to pay a fine of Rs.3,00,000/- with a default clause for the offence under Section 376(1) of the IPC.

Brief Statement of Facts

3. The prosecution allegation is that the appellant trespassed into the house bearing door No.XII/349, Krishnapuram Grama Panchayat, at about 11:00 a.m. on 05.03.2012 and subjected the survivor to penetrative sexual abuse.

Registration of Crime and Investigation

4. It was based on a statement furnished by the child to the ASI of Police, Kayamkulam Police Station, on 24.03.2012 that Crime No. 384 of 2012 of the Kayamkulam Police Station was registered. In the FI Statement, it was stated that she was subjected to sexual abuse about three months prior to the registration of the crime.

5. The investigation of the case was conducted by PW6 (Shanihan), the Inspector of Police, Kayamkulam Police Station. He prepared Ext.P5 Scene Mahazar on 25.03.2012. The clothes alleged to have been worn by the survivor were seized and marked as MO1 (Maxi). On the same day itself, at about 12 noon, the accused was arrested as per Ext.P7 Arrest Memo. Based on the disclosure statement made by him, MO2 (Kaily), MO3 (Shirt), and MO4 (underwear) allegedly worn by the accused at the time of occurrence were seized as per Ext.P10 Seizure Mahazar. The accused was produced before the Medical Officer and Ext.P3 Potency Certificate was obtained. The survivor was produced before the Medical Officer attached to the T.D. Medical College Hospital, Alappuzha, and Ext.P4 Medical Report was obtained. Ext.P13 is the Scene Plan which was obtained from CW13 local Village Officer. Ext. P14 Certificate, showing the date of birth of the survivor was obtained from CW15 Headmistress showing the date of birth of PW1. Thereafter, the investigation was handed over to PW7 (T.Rajappan), who conducted the investigation and laid the final report before the Court.

6. Committal proceedings were initiated by the learned Magistrate in accordance with the law, and the case was committed to the Court of Session, Alappuzha. After hearing the prosecution and the accused, charges were framed under Sections 450 and 376(1) of the Indian Penal Code. When the same was read over, he pleaded not guilty and that he be tried in accordance with the law.

Evid