Madhu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941** **BAIL APPL.NO.5881 OF 2019** **CRIME NO.406/2019 OF ALATHUR POLICE STATION, PALAKKAD** ## **APPLICANT/ACCUSED:** **MADHU, AGED 37 YEARS, S/O.MANI, THEKKUMURI HOUSE, ATHIPOTTA, ALATHUR, PALAKKAD.** **BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ALEXANDER THOMAS, J. -------------------------------------------B.A. No. 5881 of 2019 -------------------------------------------Dated this the 22[nd] day of August, 2019 ## O R D E R The petitioner herein has been arrayed as the sole accused in the instant Anx.A Crime No.406/2019 of Alathur Police Station, which has been registered for offences punishable under Secs.376(1), 376(2), 376(2)(f), 376(2)(n) & 506 of the IPC, on the basis of FIS given by lady defacto complainant on 25.7.2019 at about 7 pm in respect of alleged incidents which have happened from October, 2010 onwards. 2. The prosecution case in short is that, the petitioner accused now aged 37 years is the elder brother of the husband of the lady defacto complainant now aged 37 years, and that she had married petitioner's brother ('Manu') on 14.9.2009 and she and her husband were residing along with the petitioner and his family, and the husband used to come to the house only once in two weeks as he was working as a painter in Thrissur, and that on a day in last week of October, 2010, when husband was not in the house and while the lady was sleeping in her bedroom, the petitioner had barged into her B.A. No. 5881 of 2019 ..3.. room and closed her mouth, and had forcible sexual intercourse with her and threatened her that if she divulges this to anybody, he would kill her. Later in November, 2010, also he had forcible sexual intercourse with her on 3 occasions when her husband was not there, and that she became pregnant on account of the sexual relationship with the petitioner, and had given birth to a girl child, and on account of the threat posed by the petitioner she feared to divulge these incidents to anybody, and later she disclosed this to her brother and sister and had also informed her husband, and that the petitioner had never even cared to accept the paternity of the girl child born to her in the abovesaid relationship with the petitioner, etc. 3. Counsel for the petitioner would point out that the abovesaid allegations are all false and baseless and further that, the alleged incidents have taken place in the last week of October, 2010 and subsequently in November, 2010, whereas the FIS and FIR has been lodged as late as on 25.7.2019, and that the long delay is not reasonably explained in any manner and the long and unexplained delay in lodging the crime is fatal to the very root of prosecution case, and that it affects the very believability and credibility of the B.A. No. 5881 of 2019 ..4.. version of prosecutrix. Further that, later the lady had eloped with one of her male cousin and also taken away her daughter, and was residing with the said cousin for some time and later she and her male cousin attempted to commit suicide, and had also administered poison to the child, and all 3 of them were hospitalized and had escaped death, and Anx.B Crime No.937/2018 of Alathur Police Station was registered for offenes punishable under Secs.307, 309 r/w 34 of the IPC and Sec.75 of the JJ Act, in which the lady has been arrayed as A1 and her male cousin has been arrayed as A2. Thereafter she started residing with her brother's family and had later filed Anx.C application for custody of child before the Court below concerned, and had prayed that the custody of girl child which was then with the lady's husband should be given to her. In such a case, if as a matter of fact the paternity of the child was that of the petitioner, then certainly that was a crucial and relevant factual aspect which the petitioner has fully suppressed in Anx.C application filed on 18.3.2019, and that the said omission to make the abovesaid allegation that the child was born on account of the rape committed by the petitioner etc, would clearly show that the subsequent allegation made by her in the instant crime set in motion as late as on B.A. No. 5881 of 2019 ..5.. 25.7.2019 is nothing but an afterthought and only to malign the petitioner and settle scores with her husband in the matrimonial disputes between the couple as she had eloped with another man, etc. Accordingly it is urged by Sri.Johnson Varikkappallil, learned counsel appearing for the petitioner that the custodial interrogation of the petitioner is not necessary and that this Court may grant him the benefit of anticipatory bail with any stringent conditions. 4. Learned Prosecutor has seriously opposed the grant of bail, and has pointed out that a mere reading of Anx.A FIS would make it clear that there is a strong grain of truth in her allegations, and that she has clearly stated that she was threatened by the petitioner not to divulge the incidents, and that is why she kept silent for quite a long time, and that the omission to state about the above incidents relating to rape and paternity of the child in Anx.C custody application is not much relevant, etc. Further it is stated that, there is strong likelihood of the petitioner intimidating and influencing the witnesses including the lady defacto complainant if the petitioner is let out on bail. 5. After hearing both sides and after careful evaluation of the facts and circumstances of the case, it is indisputable that there is B.A. No. 5881 of 2019 ..6.. long and unexplained delay of about 9 years in setting in motion the above crime in respect of the alleged incidents which has happened as early as on October, 2010. Atleast for the present bail application, this Court feels that there does not appear to be any strong and credible explanation for the long delay in registering the crime. Even according to the petitioner, Anx.B Final Report would show that she had left her husband and gone away with one of her male cousin and resided with him for some time along with the child, and she had even attempted to commit suicide, and atleast thereafter, there does not appear to be any strong reason as to why she has not disclosed the abovesaid incidents. Moreover the non disclosure of these incidents in Anx.C custody application regarding the issue as to whether custody of girl child has to be with her or with her husband, also cannot be simply brushed aside by this Court. 6. Taking into account the cumulative aspects of all these circumstances and other attendant facts, this Court is persuaded to accept the fervent plea made by Sri.V.A.Johnson Varikkappallil, learned counsel appearing for the petitioner that the petitioner has made out a strong probable case that his custodial interrogation is not necessary for effectuating smooth and proper investigation in B.A. No. 5881 of 2019 ..7.. this crime. However the caution made by prosecution regarding the likelihood of the petitioner intimidating or influencing the witnesses including the lady defacto complainant cannot be safely ruled out by this Court. It is not known as to whether the petitioner is residing within the territorial limits of the Police Station within whose limtis the lady is now residing. In the interest of justice it is proposed to order that the petitioner shall not enter into or reside within the territorial limits of the Police Station where the lady defacto complainant is now residing until the conclusion of investigation process in this case, subject to certain exceptions which will be dealt with herein after. However the petitioner will have to be immediately co-operate with the Investigating Officer in the conduct of interrogation process. Accordingly it is ordered that, in the event of the petitioner being arrested by police in connection with the abovesaid crime, he shall be released on bail on executing bond for Rs.40,000/- and on furnishing two solvent sureties for the like sum, each to the satisfaction of the Investigating Officer concerned. 7. Further it is also ordered that the grant of bail will be subject to following conditions:- B.A. No. 5881 of 2019 ..8.. - _i. The petitioner shall report before the Investigating Officer on every 2[nd] and 4[th] Saturdays, at any time between 10 am and 1 pm, for a further period of 6 months and as directed by the Investigating Officer in that regard._ - _ii. The petitioner shall fully co-operate with the investigation._ - _iii. The petitioner shall not involve in any criminal offences of similar nature._ - _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 or workplace of the lady defacto complainant until the conclusion of investigation process._ - _vi. The petitioner shall not enter into or reside within the territorial limits of the Police Station within whose limits the residence and work place of the lady defacto complainant is situated until the conclusion of investigation process, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the 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._ - _viii. The Investigating Officer will ensure that a Police Constable preferably a Woman Police Constable is deputed to the residence of the lady defacto complainant once in six weeks, to ascertain whether she has been subjected to any threat or intimidation by the petitioner or men at his instance. If anything adverse is brought to the notice of the Investigating Officer, then he shall take necessary steps in accordance with law._ B.A. No. 5881 of 2019 **==> picture [19 x 9] intentionally omitted <==** 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