Ashik v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` MONDAY, THE 10[TH] DAY OF JUNE 2024 / 20TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 3973 OF 2024 ``` ``` CRIME NO.407/2024 OF CHALAKKUDY POLICE STATION, THRISSUR ``` ## `PETITIONER:` ``` ASHIK, AGED 30 YEARS S/O. JALEEL, DEVASWAMPARAMBIL HOUSE , (KORANGATHU HOUSE), NAIRANGADI DESOM, KODASSERY VILLAGE, THRISSUR DISTRICT, PIN – 680721 ``` ``` BY ADVS.MANUMON A. SANTHOSH.T.P RIA VARGHESE JAYAN KUTTICHAKKU ``` ``` RESPONDENT: ``` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3973/2024_ _-:2:-_ _Dated this the 10[th] day of June, 2024_ ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.407/2024 of the Chalakkudy Police Station, Thrissur, which is registered against the accused for allegedly committing the offences punishable under Sections 363, 376, 376(3), 354A(1)(i), 354D(i)(ii) & 506 read with Section 34 of the Indian Penal Code, 1860(‘IPC’, for short) and Sections 4(1), 4(2) read with Section 3(a) & 12 read with Section 11(iv)(vi) of the Protection of Children from Sexual Offences Act, 2012(for short, ‘POCSO Act’). The petitioner was arrested on 08.04.2024. 2. The essence of the prosecution case is that: the first accused, who is working as a conductor in a private bus, met the victim, a minor aged 15 years, on the bus. He with an intention to have sexual _B.A.No.3973/2024_ _-:3:-_ intercourse with the victim, appeased the victim that he would get married to her. Accordingly, on 29.02.2024, at around 8.30 hours, the first accused abducted the victim from Chalakkudy bus stand and took her to a lodge in Nedumbassery and he had committed penetrative sexual intercourse on her. Thus, the first accused is alleged to have committed the above offences. 3. Heard; Sri. Manumon A. the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The offences alleged against the petitioner would not be attracted. In fact, the petitioner and the victim are in love. It is with the consent of the relatives of the victim, that the _B.A.No.3973/2024_ _-:4:-_ petitioner and the victim were living together in the same residence. Therefore, there is no question of the first accused making any false promise to the victim. The petitioner has been in judicial custody since 08.04.2024, the investigation in the case is complete, and all the forensic tests have been complied with. Therefore, the petitioner may be released on bail. 5. The learned Public Prosecutor seriously opposed the application. She submitted that there are incriminating materials to substantiate the involvement of the petitioner in the above crime. The victim is only 15 years of age. Therefore, there cannot be any question of consent, in view of Section 90 of the IPC. The petitioner has committed a very heinous offence under the IPC as well as the POCSO Act. If the petitioner is released on bail, there is every likelihood of him prevailing over the victim, intimidating her, and also torpedoing the entire prosecution case. Hence, the _B.A.No.3973/2024_ _-:5:-_ ## application may be dismissed. 6. The prosecution allegation against the petitioner is that he had abducted the victim and took her to a place at Nedumbassery and committed penetrative sexual assault on her. Indisputably, the victim is a 15 year old girl. The petitioner’s contention that he was in love with the victim has no legs to stand, in view of Section 90 of the IPC. 7. In a case of identical circumstances, the Hon'ble Supreme Court in **X v. The State of Jharkhand & Anr** [2022 Livelaw SC 194] has categorically held that prima-facie where there are materials to substantiate that the victim is under the 18 and the accused has committed age years, penetrative sexual assault on her, contention that the parties were in love, has no bearing to the matter. Considering the gravity and seriousness of the crime, bail should not be granted in offences falling within the _B.A.No.3973/2024_ _-:6:-_ purview of Section 376 of the IPC and Section 6 of the POCSO Act. 8. In the case of identical nature, in **Maheshwar Tigga vs The State Of Jharkhand** [(2020) 10 SCC 108], the Hon'ble Supreme Court has observed as follows: “15.In Uday (supra), the appellant and the prosecutrix resided in the same neighbourhood. As they belonged to different castes, a matrimonial relationship could not fructify even while physical relations continued between them on the understanding and assurance of marriage. This Court observed as follows: “21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.” ## 9. Again in **Sujith v. State Of Kerala** [2018(3) KHC _B.A.No.3973/2024_ _-:7:-_ ## 641], this Court after considering Section 20 of the Act has observed as follows: “14. S.29 of the Act states that where a person is prosecuted for committing or abetting or attempting to commit any offence under S.3, S.5, S.7 and S.9 of the Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. Therefore, the principle that an accused is presumed innocent till found guilty, will not apply to a case under S.3, S.5, S.7 and S.9 of the Act with its full rigor. The Court shall take into consideration the presumption under S.29 of the Act while dealing with an application for bail filed by a person who is accused of the offences under S.3, S.5, S.7 and S.9 of the Act (See State of Bihar v. Rajballav Prasad, 2016 KHC 6785 : AIR 2017 SC 630 : 2017 (2) SCC 178). True, a presumption in a criminal case can arise only when the prosecution has adduced the facts forming the foundation of the case. In the instant case, prima facie, there are sufficient materials to find the complicity of the petitioner in the crime.” 10. In the instant case, the allegation against the petitioner is that he committed penetrative sexual assault on the victim, who was only 15 years of age at the time of incident. Therefore, the question that the petitioner had a consensual sexual relationship with the victim does not arise at all. Moreover, the _B.A.No.3973/2024_ _-:8:-_ petitioner’s contention that he proposes to marry the victim once she attains marriageable age is also untenable, because the victim is only 15 years of age. 11. On an overall conspectus of the facts, the rival submissions made across the Bar, and the materials placed on record, especially the case diary, which prima-facie shows that the accusations levelled against the petitioner are probable, though that is a matter to be investigated and decided at the time of trial, I am not inclined to enlarge the petitioner on bail. The application is meritless and is resultantly dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/10.06.24 //True copy// P.A. To Judge