Anu P. Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 18TH DAY OF DECEMBER 2019 / 27TH AGRAHAYANA, 1941** ## **Bail Appl..No.8776 OF 2019** **CRIME NO.815/2019 OF KOODAL POLICE STATION, PATHANAMTHITTA** ## **APPLICANT/ACCUSED:** **ANU P.KUMAR AGED 38 YEARS S/O V.SREEDHARAN, ANU BHAVAN, KOODAL P.O., KOODAL MURI, KALANJOOR VILLEGE, KONNI TALUK, PATHANAMTHITTA DISTRICT-689 693.** **BY ADV. SRI.AJEESH K.SASI** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **SRI. AMJAD ALI- PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.8776 of 2019 2 ## **ALEXANDER THOMAS, J.** ## **===========================** ## **B.A.No.8776 of 2019** **===========================** Dated this the 18[th] day of December, 2019 ## **ORDER** The petitioner herein has been arrayed as the sole accused in the instant Crime No.815/2019 of Koodal Police Station, Pathanamthitta district, registered for offences punishable under Secs.376(2)(f)(n) and 506(i) of the Indian Penal Code and Sec.5(n) read with Sec.6, Sec.11 (iii) read with Sec.12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and Sec.75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The crime has been registered on the basis of the First Information Statement given by the minor victim girl aged 15 years on 23.10.2019 at about 2 p.m. (the crime registered on the same day at 4.45 p.m.), in respect of the alleged incidents which happened on a day after the second week of March, 2018 and before 30.03.2018. 2. The prosecution case in short as disclosed in the abovesaid First Information Statement given on 23.10.2019 is that the petitioner/accused aged 38 years is the father of the minor victim girl aged 15 years and that on a day after the second week of March, 2018 and B.A.No.8776 of 2019 3 before 30.03.2018, while she was sleeping in her room she found that the petitioner, who is her father was near her and then he had forcibly assaulted her and attempted to insert his genital organ in her genital organ, etc. and she tried to yelled out and then he closed her mouth and threatened her that if she discloses it to anybody, he would kill her and her mother. That out of fear and shame, she did not disclose the incident to anyone. Later, when she was attaining to the camp of the National Cadet Corps, she got reading materials about problems faced by young adolescents in relation to sexual offences and after reading that she tole her mother, who in turn informed the child line authorities, which led to the registration of the instant crime, etc., which led to the submission of the FIS and the registration of the instant crime, etc. 3. The learned counsel for the petitioner would point out that the abovesaid allegations are false and fabricated and is a product of afterthought and revenge engineered by none other than his wife, who is the mother of the victim girl, with whom the petitioner is having long standing marital disputes. That earlier, the petitioner's wife had raised many disputes in the year 2010 and the matter was settled and the couple agreed to live together on 25.07.2011, when she filed an original petition before the Family Court, Pathanamthitta for return of money and gold B.A.No.8776 of 2019 4 ornaments and the matter was settled on 25.07.2011 when both of them had agreed to live together. Later, again quarrels occurred and peace did not prevail and the petitioner's wife had left the petitioner's house along with the daughter (victim girl) on 25.03.2018 and thereafter, she and her daughter has never lived together under the same roof with the petitioner. Immediately, thereafter the petitioner's wife has filed O.P.No.342/2018 before the Family Court, Pathanamthitta on 10.04.2018 again coming with the prayer for return of gold ornaments and money. In the said O.P No.342/2018 filed on 10.04.2018, she has clearly stated that she and her daughter are living separately from the petitioner from 25.03.2018. Further that, again she has filed M.C.No.213/2018 on 03.11.2018 seeking grant of maintenance under Sec.125 of the Cr.P.C, which was duly settled by the petitioner on 22.07.2019. That both in the abovesaid matrimonial dispute proceedings, the petitioner's wife has not even raised a remote whisper about any of the incidents which is said to have happened in March, 2018. Further that, recently the petitioner's wife had changed her counsel and the petitioner has reliable information that it is only on account of the evil advise given by the new counsel that she has come up in this false story that the petitioner had sexually assaulted his daughter on a day after second week of March, 2018 and before 30.03.2018. It is B.A.No.8776 of 2019 5 pointed out that it is an indisputable fact that the petitioner's wife and his daughter had left his house on 25.03.2018. Still in the FIS it is alleged that the incident could have happened after the second week of March, 2018 and before 30.03.2018. 4. The learned counsel for the petitioner would point out that it is only to put pressure on the petitioner and to illegally make him compromise to the illegal demands of his wife that the she has falsely instigated her daughter to give the instant false allegations. Further, crucially it is pointed out that there is a delay of more than 19 long months between the date of the alleged incident and the date of the reporting of the crime and the delay is not explained in any manner by the prosecution and therefore the unexplained delay would fatally vitiate the impugned criminal proceedings. In this regard, the learned counsel for the petitioner would place reliance on various decisions of the Apex Court, including those in the case in _**Thulia Kali v. The State of Tamil Nadu**_ ] AIR (1973) SC 501], State of _**Andhra Pradesh v. M.Madhusudhan Rao**_ [(2008) 15 SCC 582], etc., wherein the Supreme Court has laid down the legal principles in respect of the significance of delay in lodging the First Information Reports and that wherein it has been held that the delay in lodging of the FIR will more B.A.No.8776 of 2019 6 often than not, result in embellishments and exaggerations, which are the creations of afterthoughts. Delayed report, not only gets bereft of the advantages of spontaneity, but the danger of introduction of coloured versions exaggerated account of incidents or a concocted story as a result of deliberations and consultation also creeps in, which in turn would cast very serious doubts on the very veracity of the prosecution story. Hence, it has been held that it is highly essential that the delay in lodging the FIR should be satisfactorily explained by the prosecution, etc. In the light of these aspects, the learned counsel for the petitioner would point out that this Court may direct the grant of anticipatory bail to the petitioner, subject to appropriate conditions that may deem fit and proper for this Court. 5. The learned Public Prosecutor has opposed the grant of anticipatory bail and has pointed out that merely because of the delay of 19 months, does not necessarily imply that the allegations are _per se_ false and that the matter requires intense investigation and further that there is every possibility of the petitioner intimidating and influencing the witnesses, more particularly, the minor victim girl, who is none other than his daughter. B.A.No.8776 of 2019 7 6. After hearing both sides and after careful evaluation of the facts and circumstances of this case, more particularly, taking into account the long and unexplained delay of 19 long months and also taking note of some of the submissions noted hereinabove regarding the constant matrimonial disputes between the spouses, etc., this Court is inclined to take the view that the custodial interrogation of the petitioner may not be necessary or warranted, for effectuating the smooth and fair conduct of the investigation in this crime. However, taking note of the abovesaid serious apprehension raised by the prosecution, it is ordered as a safeguard that the petitioner shall not enter into or reside anywhere within the territorial limits of the police station, where the minor victim girl is residing or studying, until the completion of the investigation process in this case, subject to certain exceptions, which would be dealt with hereinafter. Accordingly, it is ordered in the event of the petitioner being arrested in relation to the instant crime, he shall be released on bail on his executing bond for Rs.40,000/- (Rupees Forty Thousand only) and on his furnishing two solvent sureties for the like sum each, both to the satisfaction of the Investigating Officer concerned. However, the above order shall be subject to the following conditions: B.A.No.8776 of 2019 8 - (i) The petitioner shall not involve in any criminal offences of similar nature. - (ii) The petitioner shall fully co-operate with the investigation. - (iii) The petitioner shall report before the Investigating Officer as and when required in that connection. - (iv) The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever. - (v) The petitioner shall not visit or go anywhere near the residence of the minor victim girl and shall not enter into or reside anywhere within the territorial limits of the Police Station, where the minor victim girl is residing or studying, until the conclusion of the investigation process, except for the limited purpose of reporting before the Investigating Officer in connection with the abovesaid crime or any other crimes or for attending any courts in relation to this case or for contacting his Advocate. - (vi) However, for emergent reasons he may visit there, but only with the prior permission of the Investigating Officer. 7. If the petitioner violates any of the above conditions, the jurisdictional Court concerned will stand hereby empowered to consider the application for cancellation of bail, if required, and pass appropriate orders in accordance with law. With these observations and directions, the above Bail Application will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** vgd