Petitioner v. State of Kerala

B.A.No.8188/22 1 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 9[TH] DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944 ``` ``` BAIL APPL. NO. 8188 OF 2022 ``` ``` CRIME NO.475/2022 OF KUTTAMPUZHA POLICE STATION, ERNAKULAM ``` ## `PETITIONER/ACCUSED:` ``` XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX ``` ``` BY ADV.NIREESH MATHEW ``` ## `RESPONDENT/STATE:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031. ``` ``` BY SRI.C.S.HRITHWIK, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.8188/22 2 ## **O R D E R** This is an application filed u/s 438 of the Code of Criminal Procedure seeking pre-arrest bail. 2. The petitioner, a woman aged 21 years, who is the accused in Crime No.475 of 2022 of Kuttampuzha Police Station, has approached this Court seeking anticipatory bail. The offence alleged against her are under Sections 8, 7, 10, 9(l), 9(m), 9(n), 12, 11, 11(iii) and 11(v) of the Protection of Children from Sexual Offences Act, 2012. 3. The prosecution case is that, during some days between 15.04.2021 and 01.05.2021, the victim, a boy aged eight years, was sexually abused by the accused, who is his relative, at the residence of the victim, by showing obscene videos in her mobile phone. It is also alleged that the accused caught hold of the private parts of the victim while they went for a bath in the nearby ‘thodu’ and also while they were sleeping. It is further alleged that chocolates were given to the victim child to suppress the acts committed by the accused. The crime was registered based on the information furnished by the mother of the victim. This application for anticipatory bail is submitted in such circumstances. B.A.No.8188/22 3 4. The learned counsel for the petitioner submits that the petitioner is innocent of all the allegations. The specific contention put forward by the learned counsel for the petitioner is that she herself is a victim of the sexual abuse and earlier, two crimes, namely, Crime No.667 of 2020 of Rajakkad Police Station for the offences punishable under Sections 376 IPC and Sections 3(a), 4, 5(l) and 6 of the Protection of Children from Sexual Offences Act, 2010 and Section 75 of the Juvenile Justice Act and Crime No.792 of 2022 under Sections 354 A(1)(iii), 354 D, 509 read with 34 IPC were registered in connection with the same. Accused in both the said cases was one Aneesh, a close relative of the petitioner and the victim child. It is the case of the petitioner that, while the trial of one of the said cases was going on, the said Aneesh and the mother of the victim had pressurised the petitioner to give evidence against the prosecution case in the said crime. The petitioner did not concede to the said demand, and she gave evidence on 16.08.2022 before the Fast Track Court (POCSO), Idukki, in tune with the prosecution case and thereby, the accused was convicted. It is contended that the petitioner was falsely implicated in this case as retaliation of the same. 5. On the other hand, the learned Public Prosecutor would oppose the bail application and the contentions raised by the B.A.No.8188/22 4 petitioner. The statement of the victim recorded under Section 164 Cr.P.C. was also made available before this Court. Similarly, the statement of the investigating officer was also produced before this Court for perusal. 6. I have gone through the records and heard the submissions made by both sides. It is true that the statement of the victim under Section 164 Cr.P.C contains certain allegations against the petitioner. The aforesaid statement was recorded on 05.09.2022, and the incident allegedly occurred between 15.04.2021 and 01.05.2021, one year prior to the same. On going through the statement of the investigating officer, it is discernible that the call data records of the mother of the child were examined, which would reveal that there were 23 phone calls between her and the said Aneesh, who is the accused in the crimes in which the petitioner was the de facto complainant. The said calls were made between them before 29.05.2022 and there were no phone calls after 16.08.2022, the date on which the petitioner gave the evidence against the said Aneesh. It is also evident from the records that, earlier, the child was subjected to psychological evaluation before a clinical psychologist when he was referred to the psychologist by another doctor. The psychological evaluation record was also produced before this Court. It is noted in the said B.A.No.8188/22 5 report that, during the evaluation process, the child appeared excessively anxious. It is observed that he has some doubt as to whether the excessive anxiety may be due to undue pressure exerted on the child. It is also discernible that the mother also made similar allegations which were made by the child before the psychologist. In the statement of the investigating officer, some discrepancies are noted concerning the statement given by some witnesses. When all these aspects are considered, I am of the view that the case advanced by the learned counsel for the petitioner, to the effect that there is an attempt to implicate the petitioner in a false case, cannot be simply brushed aside. The investigation so far conducted by the Police indicates some discrepancies, and therefore, I am of the view that the denial of anticipatory bail to the petitioner, in this case, may not be proper. This is particularly because the petitioner is a victim of sexual assault, and she is a woman aged 21 years. No serious penetrative sexual assault is seen made, even as per the allegations. Hence, when all these aspects are considered, I deem it appropriate to pass an order protecting the personal liberty of the petitioner. However, the petitioner's cooperation with the investigation is also to be ensured. B.A.No.8188/22 6 In the result, the application is allowed on the following conditions:- i The petitioner shall surrender before the Investigating officer, within a period of two weeks from today, for subjecting herself to interrogation. ii After interrogation, the petitioner shall be released on bail on the very same day of surrender upon the petitioner executing a bond for Rs.1,00,000/- with two sureties each for the like sum, to the satisfaction of the investigating officer. iii The petitioner shall fully cooperate with the investigation, including subjecting herself to the deemed police custody for the purpose of recovery, if any, as and when demanded. iv The petitioner shall appear before the investigating officer between 10.00 a.m. and 11.00 a.m. every Wednesday until further orders. v The petitioner shall also appear before the investigating officer as and when required. vi The petitioner shall not commit any offence of like nature while on bail. vii The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation. B.A.No.8188/22 7 - (viii) The petitioner shall not leave the State of - Kerala without the permission of the trial Court. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law. **Sd/-** **ZIYAD RAHMAN A.A. JUDGE** DG/9.2.23 B.A.No.8188/22 8 ``` APPENDIX OF BAIL APPL. 8188/22 ``` |`PETITIONER’S`|`ANNEXURES:`| |---|---| |`ANNEXURE-1`|`TRUE PHOTO COPY OF THE FINAL REPORT DATED`| ||`23.10.2021 IN CRIME NO.667/2020 OF RAJAKKAD POLICE`| ||`STATION`| |`ANNEXURE-2`|`TRUE PHOTO COPY OF THE DEPOSITION OF PW1 IN S.C.`| ||`NO.614/2021 DATED 16.8.2022`| |`ANNEXURE -3`|`TRUE PHOTO COPY OF THE FIRST INFORMATION REPORT IN`| ||`CRIME NO.792/2022 OF ADIMALI POLICE STATION DATED`| ||`27.7.2022`|