The petitioner herein has been arrayed as the sole

accused in the instant Crime No.351/2019 of Chandera Police

Station, Kasargode, registered for offences punishable under

Sec.376 AB of the IPC and Secs.5m & 6 of the POCSO Act, 2012.

The abovesaid case has been registered on the basis of the FIS

given by the mother of the minor victim girl aged 5 years on

16.9.2019 at about 5.10 p.m., in respect of the alleged incidents

which happened a few days prior to the submission of the said FIS.

2. The prosecution case in short is that the

petitioner/accused aged 47 years is living in the immediate

neighbourhood of the minor victim girl aged 5 years and that on a

day in the second week of September, 2019, when the minor victim

girl was having Onam holidays, the petitioner had forcibly taken

her away to an isolated place and then committed penetrative

sexual assault on her, etc. The abovesaid incident was initially

B.A. No. 8609 /2019

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reported by the victim's mother's mother and thereafter the

victim's mother had alerted the Child Line authorities, which later

led to the registration of the instant crime. Since initially, the child

was in a traumatic condition, the FIS has been taken from the

victim's mother. Later, Sec.164 Cr.P.C statement of the minor

victim girl has been recorded by the learned Magistrate, wherein

she has reiterated the abovesaid incidents. The petitioner has been

arrested in this case on 17.09.2019 and after remand, he has been

under detention since then.

3.

The learned counsel for the petitioner would point out

that a mere reading of the FIS in this case would clearly indicate

that none of the vital ingredients of penetrative sexual assault as

defined in Sec.376 of the IPC or Secs. 3 & 4 of the POCSO Act are

fulfilled in the instant case, and at best even if it is assumed that

the entire prosecution materials are correct, then it may only

disclose aggravated sexual assault as per Sec.9(m) of the POCSO

Act, as the victim girl is stated to be below the age of 12 years. In

that connection the counsel for the petitioner has invited this

Court's attention to the relevant part of the FIS in this case, which

reads as follows:

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"പുരുഷഷഷോത്തമൻ അവൻററ്റെ വവീടട്ടിറലെ മുറട്ടിക്കുളട്ടിൽ റവചച

അടട്ടിവസസ്ത്രം ഊരട്ടിമഷോറ്റെട്ടി മകളുറട മൂത്രറമഷോഴട്ടിക്കുന്ന ഭഷോഗത്തു അവൻററ്റെ

മൂത്രറമഷോഴട്ടിക്കുന്ന സഷോധനസ്ത്രം റകഷോണച പഷോലെഷോകട്ടിയതഷോയട്ടി അമ്മ പറഞ.”

4.

It is also urged by the counsel for the petitioner

that as the petitioner has suffered detention for the last

73 days, his continued incarceration is not necessary and this

Court may order to release him on regular bail, subject to any

stringent conditions. It is also pointed out that the prosecution

does not have any certainty or definiteness as to the when the

alleged incident has taken place, except to say in Anx.A1 FIS that

incident has taken place some day prior to 14.9.2019. That the lack

of precision in material particulars as well as the delay in lodging

of case, would fatally vitiate the impugned criminal proceedings,

etc.

5.

It appears that the FIS has been given by the

mother of the minor victim girl aged 5 years. On being queried as

to whether the minor victim girl has thereafter given her

statement under Sec.164 of the Cr.P.C. before the learned

Magistrate and as to whether her version as per Sec.164 of the

Cr.P.C. is also in similar lines as in the Anx.A1 FIS etc,

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the learned Prosecutor has submitted on the basis of

instructions that version given by the minor victim girl

in her Sec.164 Cr.P.C. Statement is on the same lines as

aforestated in Anx.A1 FIS.

6.

The learned Prosecutor has opposed the plea for

regular bail and further that as the petitioner is the

immediate neighbour of the minor victim girl there

is every possibility of the petitioner intimidating and

influencing the witnesses, more