K.A. Sudheer v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941** **BAIL APPL.NO.7577 OF 2019** **CRIME NO.1377/2019 OF ALUVA EAST POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** **K.A.SUDHEER, AGED 39 YEARS, S/O. ABDUL RAHIMAN, KARIPPAI HOUSE, DARUSALAM, THAIKKATTUKARA P.O. ALUVA.** **BY ADVS. SRI.S.RAJEEV, SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY, SRI.D.FEROZE & SRI.K.ANAND** ## **RESPONDENTS/STATE:** |**1**|**STATE OF KERALA**| |---|---| ||**REP. BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM 682 031.**| ||**(CRIME NO. 1377/2019 OF ALUVA EAST POLICE STATION,**| ||**ERNAKULAM DISTRICT).**| |**2**|**STATION HOUSE OFFICER,**| ||**ALUVA POLICE STATION, ERNAKULAM DISTRICT 683 101.**| ||**(CRIME NO. 1377/2019 OF ALUVA EAST POLICE STATION,**| ||**ERNAKULAM DISTRICT).**| ||**SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR**| **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ---------------------------------------B.A. No. 7577 of 2019 ---------------------------------------- Dated this the 21[st] day of November, 2019 ## O R D E R The petitioner has been arrayed as the sole accused in the instant Crime No.1377/2019 of Aluva East Police Station, which has been registered for offences punishable under Secs.376(2)(n) & 384 of the IPC. The said case has been lodged on the basis of the FIS given by the lady defacto complainant on 15.8.2019 at about 10.45 am (Crime registered on 16.8.2019 at about 4.45 pm) in respect of the alleged incidents which happened for the period from 1.3.2016 to 31.7.2016. 2. It appears that the lady defacto complainant aged 38 years is a married woman having two children and she was earlier found missing from her parental home, pursuant to which a man missing case was given by her father and the case was registered at the Kunnathunadu Police Station under Sec.57 of the Kerala Police Act, 2011. During the course of enquiry conducted by the police, they could trace out the lady defacto complainant and B.A. No. 7577 /2019 ..3.. based on the statements given by her, the present crime has been registered. It is only in the course of the enquiry conducted under Sec.57 of the Kerala Police Act, 2011, that the present information have been elicited. Accordingly the police has formally recorded the FIS given by the lady defacto complainant in this case on 15.8.2019 at about 10.45 am, pursuant to which the instant crime has been registered on 16.8.2019 at 4.45 pm, in respect of the alleged incidents which happened for the period from 1.3.2016 to 31.7.2016. 3. In the said FIS the lady would that she has been married for about 18 years and that she has got two sons and her husband is working as a driver in the railway meals service, and that on 14.8.2019 she had left her house taking her gold ornaments and went from Aluva to Thiruvananthapuram, and she went to a Mosque, slept there and then the police could trace her out, etc. In the course of giving the said statement, the lady has also made allegation that the petitioner accused is a close friend of her husband and is living in her immediate neighbourhood, and that on a day in March, 2016, he had come to her residence when she B.A. No. 7577 /2019 ..4.. was alone and then placed Hans (which is stated to be a tobacco intoxicating product) over her nose and then he had forcible sexual intercourse with her, and that he had also taken her nude photographs and he used to threaten her and subsequently in June and July 2016 also he had sexual intercourse with her. It is on the basis of this information that the abovesaid crime has been registered against the petitioner for the abovesaid offences. 4. Sri.K.K.Dheerendra Krishnan, learned counsel appearing for the petitioner would point out that the abovesaid allegations are false and baseless, and further that a reading of the FIS would make it clear like the day light that the abovesaid crime has been registered not essentially arising out of the alleged grievance of the lady regarding the forcible sexual intercourse said to have been done by the petitioner accused, but in the course of narrating her version as to how she went missing from her husband's house on 14.8.2019, and therein she would also narrate the incidents which has allegedly taken place in the months March, June & July of 2016. It is urged by the petitioner that a reading of the FIS would make it clear that the lady appears to be B.A. No. 7577 /2019 ..5.. suffering from some mental illness and that even her father so stated. Further that the alleged incidents are said to have taken place as early as in the months March, June & July of 2016, whereas the instant crime has been registered as late as on 16.8.2019 and there is no explanation whatsoever for the long delay in lodging the case. Further that, as regards the first incident though there in allegation that the accused has committed forcible sexual intercourse by placing a tobacco product called Hans over her nose, etc, a full reading of the FIS would make it clear that if the entire incidents are assumed to be true, then it would have happened possibly only on the basis of consent between the parties and not otherwise, and hence the vital ingredients of rape as per Sec.376 of the IPC are not made out. 5. As regards the contention based on delay, the petitioner would place reliance on various judgments of the Apex Court as in the case in _**State of Andra Pradesh v. M.Madusudhan Rao**_ **[(2008) 15 SCC 582]** wherein the Apex Court has dealt with the legal principles and significance of delay in lodging the FIR and has been held that the delay in lodging of FIR will more often than B.A. No. 7577 /2019 ..6.. not, result in embellishments and exaggerations which are a creation of afterthought. Delayed report, not only gets bereft of the advantages of spontaneity, but the danger of introduction of coloured version, exaggerated account of incident or a concocted story as a result of deliberations and consultations also creeps in, casting a serious doubt on its veracity. Therefore, it has been held that it is highly essential that delay in lodging the FIR should be satisfactorily explained by the prosecution. 6. It is also urged by the petitioner's counsel that even according to the prosecution case, the petitioner is a close friend of the lady's husband and the FIS would disclose that there are serious matrimonial disputes between the said spouses, and it is only out of the lady's animosity against her husband that she is making false allegations against the petitioner, etc. Accordingly it is urged by the counsel for the petitioner that the custodial interrogation of the petitioner is not necessary and this Court may grant anticipatory bail to the petitioner, subject to appropriate conditions, and that the petitioner will fully co-operate with the I.O. in the interrogation process, etc. B.A. No. 7577 /2019 ..7.. 7. The learned Prosecutor has seriously opposed the grant of bail, and has pointed out that mere fact of delay cannot be the basis to contend that the allegations made by the prosecutrix are _per se_ false, etc and that the matter needs more investigation, and that since the petitioner is a close associate of the lady's husband, there is every possibility of the petitioner intimidating and influencing the witnesses more particularly the lady victim if he is let out on bail, etc. 8. After hearing both sides and after careful evaluation of the facts and circumstances of the case, and taking note of the rather long and unexplained delay in the lodging of the case and some of the other attendant circumstances, 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 investigation in this crime. However, taking note of the serious apprehension raised by the prosecution, it is ordered as a safe guard that the petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station where the lady defacto complainant is residing until the conclusion of B.A. No. 7577 /2019 ..8.. trial process, subject to certain exceptions which will be dealt with hereinafter. 9. It is pointed out that the petitioner is now residing at Aluva, and the lady's husband is also residing at Aluva. But the lady defacto complainant is now residing at Kunnathunadu near Perumbavoor, in her parental home after the present incidents. 10. The learned Prosecutor has pointed out that the petitioner has not so far appeared before the Investigating Officer for interrogation purposes. 11. Accordingly it is ordered that the petitioner should immediately report before the I.O., for interrogation purposes. Hence the following directions and orders are passed. - _i. The petitioner will immediately surrender before the Investigating Officer (I.O.) in relation to the instant crime for interrogation purposes at any rate by 9 am on any day on or before 12.12.2019, or within such time limit that may be extended by the I.O. as he deems fit and proper._ - _ii. The petitioner will fully co-operate with the Investigating Officer in the conduct of the above interrogation process._ - _iii. After the interrogation process is over, in case the Investigating Officer arrests the petitioner in relation to the abovesaid crime, then_ B.A. No. 7577 /2019 ..9.. _he shall be released on bail on his executing bond for Rs.40,000/- and on his furnishing two solvent sureties for the like sum, both to the satisfaction of the Investigating Officer concerned._ ## 12. Further it is also ordered that the grant of bail will be ## subject to following conditions:- - _i. The petitioner shall appear before the Investigating Officer (I.O.)on every 2[nd] and 4[th] Saturdays, at any time between 9 am and 1 pm, for the next 4 months, and thereafter he will report before the I.O., as and when directed._ - _ii. The petitioner shall fully co-operate with the investigation process, and if the Investigating Officer insist that the petitioner should undergo potency test, etc, he should co-operate in that regard, also._ - _iii. The petitioner shall not commit any offence while on bail._ - _iv. The petitioner shall not intimidate or attempt to influence the defacto complainant/victim, witnesses; nor shall he tamper with the evidence._ - _v. The petitioner shall not visit or go anywhere near to the residence of the lady defacto complainant._ - _vi. The petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station where the lady defacto complainant is residing until the conclusion of the trial process in this case, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the_ B.A. No. 7577 /2019 ..10.. _Court in relation to this case or any other cases or for contacting his lawyers/advocates concerned._ _vii.However if on account of any emergent personal need the petitioner wants to visit the said area, he may do so but only with the prior permission of the Investigating Officer concerned._ If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time. With these observations and directions, the above Bail Application will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG