Mathew Jose and Sakeer Mon K. v. State of Kerala and Kumaly Police Station and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 14[TH] DAY OF AUGUST 2023 / 23RD SRAVANA, 1945 ``` ## `BAIL APPL. NO. 5935 OF 2023` ``` CRIME NO.378/2023 OF KUMILY POLICE STATION, IDUKKI ``` ## `PETITIONERS/ACCUSED NOS.1 AND 2:` ``` 1MATHEW JOSE, AGED 37 YEARS S/O.JOSE MATHEW,MOLOPARAMBIL HOUSE, POOVARANI P.O., MEENACHIL TALUK, KOTTAYAM DISTRICT,, PIN - 686577 2SAKEER MON K. AGED 26 YEARS S/O.KABEER, KURISHUMALA PUTHUVAL HOUSE, CHENKARA P.O. IDUKKI DISTRICT,, PIN - 685533 BY ADVS. P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA R.GITHESH MANJUNATH MENON AJAY BEN JOSE SACHIN JACOB AMBAT HARIKRISHNAN S. S.SREEKUMAR (SR.) ``` ## `RESPONDENTS/STATE AND DEFACTO COMPLAINANT:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2THE STATION HOUSE OFFICER, KUMALY POLICE STATION, KUMALY -, PIN - 685509 3XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX R1 AND R2 BY SRI.C.S.HRITHWIK, SR.PP R3 BY ADV THOMAS J. ANAKKALLUNKAL ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 31.07.2023 14.08.2023, THE COURT ON 14.08.2023 PASSED THE FOLLOWING: ``` B.A.No.5935 of 2023 2 ## `ORDER` ``` The petitioners are the accused Nos. 1 and 2 in Crime No.378/2023 of Kumaly Police Station. The ``` ``` offences alleged against the petitioners are under section 376(2)(n), 354, 506(ii), 420 r/w 34 of the ``` ``` Indian Penal Code (IPC), Section 67E of the Information Technology Act and Section 119(b) of the Kerala Police Act. ``` ``` 2. The said crime was registered based on a ``` ``` complaint submitted by the additional 3[rd] respondent in this application, a woman aged 31 years. The ``` ``` prosecution case is that, the 1[st] accused enticed the ``` ``` defacto complainant and had sexual intercourse with her ``` ``` by making a false promise of marriage. During the course of the same, the 1[st] accused captured nude ``` ``` photographs of the defacto complainant and started threatening her. It is further alleged that during the month of July, 2022, she was asked to come to Kerala ``` ``` and was promised to return the nude photographs and to delete the same from the gadgets. Accordingly, she reached Cochin International Airport on 4.07.2022, and ``` B.A.No.5935 of 2023 3 ``` the 1[st] petitioner/accused took her to Spice Village Hotel Thekkady. During the night, both the accused came together to the hotel and informed the defacto complainant that the photos were kept at Hotel Ambady at Thekkady, and she was asked to go there. When the ``` ``` defacto complainant refused, she was threatened by pointing a gun in front of her minor child. It is alleged that the 2[nd] petitioner also attempted to ``` ``` sexually harass the defacto complainant on that day. It ``` ``` is also alleged that, on 5.07.2022, she was taken to ``` ``` the said Hotel and was subjected to rape by the 1[st] ``` ``` petitioner. Later, she was taken to Tirupur and ``` ``` Coimbatore and subjected to rape again until 7.07.2022. Further allegation is that by making the said threat, the defacto complainant was forced to transfer various ``` ``` amounts to the accused persons. The 1[st] petitioner also ``` ``` took possession of the petitioner's credit card and used it to swipe it at his own shop, “Route 66”. In addition to the same, 623 grams of the gold ornaments of the defacto complainant were also taken by the petitioners, and the same was pledged through the 2[nd] petitioner. According to the defacto complainant, the ``` B.A.No.5935 of 2023 4 ``` 1[st] petitioner introduced himself as a divorcee, and upon realizing that he was not divorcee, the defacto complainant collected the phone number of his wife and interacted with her. The wife of the 1[st] petitioner ``` ``` informed that he had relationships with several women, and there are various complainants against him. The complaint was submitted by the defacto complainant in such circumstances. ``` `3. The petitioners were arrested as part of the` ``` investigation on 15.06.2023, and since then, they have been in judicial detention. This application for regular bail is submitted in such circumstances. ``` ``` 4. Heard Sri. S.Sreeekumar, the learned Senior Counsel appearing for the petitioners, Sri.C.S Hrithwik, the learned Senior Public Prosecutor for the State and Sri. Thomas J. Anakkallunkal, learned counsel appearing for the additional 3[rd] respondent/defacto complainant. ``` `5. The learned Senior Counsel appearing for the` ``` petitioners submits that the petitioners are innocent of all the allegations. According to him, the offence of rape would not be attracted as the sexual ``` B.A.No.5935 of 2023 5 ``` intercourse between the 1[st] petitioner and the defacto complainant was on mutual consent. The allegation that the consent for sexual intercourse was obtained by making a false promise of marriage by itself would not attract the offence in the factual circumstances of this case, as the 1[st] petitioner, as well as the defacto complainant, were already married and hence the solemnisation of a legal marriage between them was ``` ``` impossible. The petitioners and the defacto complainant ``` ``` met each other through a dating app, and the petitioners had paid amounts to the defacto complainant. To substantiate the same, the petitioners produced the account statements of the petitioners and specifically referred to the transactions between the 1[st] petitioner and the defacto complainant. Besides the ``` ``` same, it was also pointed out that the defacto complainant purchased a residential apartment, and in connection with the same, an amount of Rs 31,19,904/- ``` ``` was transferred by the 1[st] petitioner to the account of the 2[nd] petitioner, who in turn transferred the said amounts to the seller of the said apartment. Thus it is pointed out that the entire allegations raised against ``` B.A.No.5935 of 2023 6 ``` the petitioners are false. The learned Senior Counsel also placed reliance on the decisions in Dhruvram Murlidhar Sonar(Dr) v. State of Maharashtra and Others [(2019) 18 SCC 191], Anilkumar v. State of Kerala and Others (2021 (2) KLT 83 and XXX v. State of Kerala and Another (2022(3) KHC SN 13) ``` `6. The learned Public Prosecutor and the learned` ``` Counsel for the defacto complainant stoutly opposed the ``` ``` application. The learned Public Prosecutor pointed out ``` ``` that there are specific allegations against the petitioners, and during the course of the ``` ``` investigation, ample materials could be recovered to substantiate the allegations. The investigation is even now in progress. ``` `7. The learned counsel for the defacto complainant` ``` reiterates the averments in the complaint submitted by her. It is further pointed out that, as against the petitioners, Crime 859/2023 is also registered by ``` ``` Ponkunnam Police Station for the offences punishable under sections 406 and 420 of the Indian Penal Code at the instance of another woman. The learned Counsel for the defacto complainant also made available the copy of ``` B.A.No.5935 of 2023 7 ``` the memorandum of OP. No. 433/2023 filed by the wife of ``` ``` the 1[st] petitioner seeking divorce, before the Family Court, Pala and in the said petition, the relationship of the 1[st] petitioner with several other women are also ``` ``` highlighted. It was also stated that, even after the ``` ``` registration of the crime, the petitioners used to contact her and threaten her and thereby to compel her ``` ``` to withdraw the complaint. Therefore, it is pointed out ``` ``` that, if the petitioners are released on bail, such threats would be repeated. The dismissal of the application was sought in such circumstances. ``` ``` 8. I have carefully gone through the records. It is ``` ``` true that, as highlighted by the learned counsel for ``` ``` the petitioners, the sexual relationship between the ``` ``` parties commenced as the 1[st] petitioner made a promise ``` ``` to marry. All the decisions relied on by the ``` ``` petitioners were relating to the question as to whether the offence of rape on the promise of marriage would be ``` ``` attracted when the woman was married at the relevant time, and it was held that if the marriage of the victim subsisting at the time of such sexual ``` ``` intercourse, and she was aware that, no legal marriage ``` B.A.No.5935 of 2023 8 ``` could be performed, the offence would not be attracted. However, there is some difference in the factual scenario of this case. Even though the relationship started on such promise, later, the 1[st] petitioner ``` ``` allegedly captured the nude photographs and started ``` ``` threatening the victim. In the complainant, it is ``` ``` specifically alleged that during the month of July, 2022, she was called to Kerala by making a promise that, once she reached, the photos would give to her, and the same would be deleted from the gadgets. ``` ``` However, upon arrival, the petitioners did not do so, instead, the defacto complainant was subjected to rape on several occasions by the 1[st] petitioner. Therefore, such sexual intercourse, which was forceful and against the consent of the victim, cannot be brought under the ``` ``` promise of marriage. Such an allegation clearly would come under the offence of rape, and merely because, on an earlier occasion the victim provided consent on the ``` ``` basis of the promise of marriage, that would not exonerate the accused from the offence. This is particularly so in a case where there is forceful sexual intercourse under the threat of publishing the ``` B.A.No.5935 of 2023 9 ``` nude photographs of the victim. Therefore, the decisions relied on by the learned counsel for the petitioners cannot be made applicable to such sexual assaults. ``` ## `9. With regard to the payments allegedly made by` ``` the petitioners to the defacto complainant also, I do not find that the contentions raised by the petitioners are acceptable. The account statement of the ``` ``` petitioners indeed reflects the transfer of amounts to the account of the defacto complainant. However, the defacto complainant has a specific case that amounts were transferred by her to the account of the petitioners also. She also alleges that 623 grams of gold from the defacto complainant were misappropriated, and the 1[st] petitioner was using her credit card also. Some of the said Gold ornaments were pledged by the 2[nd] petitioner before the Federal Bank, Kattappana, and a copy of the receipt evidencing the same was also made available for perusal. According to her, the remaining gold were either sold or pledged by the petitioners. Thus, from the perusal of the entire materials as above, I am of the view that the contentions raised by ``` B.A.No.5935 of 2023 10 ``` the learned Public Prosecutor and the learned counsel for the defacto complainant cannot be simply brushed ``` ``` aside. The allegations would make out a prima facie case, and the allegations are very serious in nature. ``` ``` Moreover, the fact that the 1[st] petitioner is involved in another offence of cheating of another lady also cannot be ignored while considering the prayer for bail ``` ``` sought by the petitioners. Similarly, in the petition ``` ``` filed by the wife of the 1[st] petitioner for divorce, there are several instances of the illicit relationship of the 1[st] petitioner, and it is yet another aspect which becomes relevant in this regard. Even though the ``` ``` learned counsel for the petitioners highlighted that ``` ``` the 1[st] petitioner and the defacto complainant were met through a dating App, and he paid money for the same, no materials to substantiate the use of such App is forthcoming. ``` ``` 10. Above all, another crucial aspect is that, ``` ``` even after registering the crime, the petitioners allegedly threatened the defacto complainant to compel her to withdraw the complaint. In this regard, the learned Counsel for the defacto complainant also has a ``` B.A.No.5935 of 2023 11 ``` case that the petitioners came to Delhi, from where they were arrested, to compel the defacto complainant to withdraw the complaint by threatening. ``` ``` 11. It is true that the allegations of committing ``` ``` rape are confined to the 1[st] petitioner and not to the 2[nd] petitioner, even though there is an allegation that the second petitioner attempted to commit sexual assault against her on one occasion. However, the ``` ``` presence of the 2[nd] petitioner is felt right from the inception, and he was the person who provided all sorts of aid and assistance to the 1[st] petitioner. Even according to the 1[st] petitioner, he used to transfer the amounts to the 2[nd] petitioner, who in turn transferred the said amount to the victim. Thus it is seen that ``` ``` when the 1[st] petitioner committed the sexual assaults on ``` ``` the defacto complainant, the 2[nd] petitioner facilitated the same. Besides the same, he had active involvement in the alleged misappropriation of the amounts as well, since there were transfers of amounts from his account, ``` ``` and some of the gold was also pledged in the name of the 2[nd] petitioner. In this regard, it is also reported that the gold pledged by the 2[nd] petitioner at the ``` B.A.No.5935 of 2023 12 ``` Federal Bank, Kattappana Branch, was identified by the ``` ``` police through the defacto complainant based on the ``` ``` peculiar type of hallmarking on the said gold ornaments. ``` ``` 12.Thus, when all the aforesaid aspects are taken ``` ``` into consideration, I am of the view that there are sufficient materials to make out a prima facie case, and the allegations raised are grave in nature. The ``` ``` chances of the petitioners intimidating the victim if ``` ``` released on bail also cannot be ruled out. The ``` ``` investigation is even now in progress. Therefore, I do ``` ``` not find this as a fit case in which the bail can be granted. ``` ``` In such circumstances, I do not find any merit in ``` ``` this application, and the same is dismissed ``` ``` accordingly. ``` ## `Sd/-` ``` ZIYAD RAHMAN A.A. JUDGE ``` pkk