Shakkir Ali v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941** ## **Bail Appl..No.6167 OF 2019** **CRIME NO.786/2019 OF ELAMAKKARA POLICE STATION , Ernakulam** ## **PETITIONER/ACCUSED:** **SHAKKIR ALI, AGED 38 YEARS S/O.ALIKUTTY, PULICKAL HOUSE, NADUVATTOM P.O., PATTAMBI, PALAKKAD-679 308. BY ADVS. SRI.P.B.AJOY SRI.P.A.MUJEEB** ## **RESPONDENT/COMPLAINANT:** **1 STATE OF KERALA, THROUGH SHO OF ELAMAKKARA POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 ADDL.R2. VICTIM ADDITIONAL R2 IS IMPLEADED AS PER ORDER DATED 23.10.2019 IN CRL.MA NO.1/2019 IN BA-6167/2019. R2 BY ADV. ANVER BASHEER** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R1, SRI.ANVER BASHEER FOR ADDL.R2** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.6167/2019 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------- ## B.A.No.6167 of 2019 ## ---------------------------------------------Dated this the 23[rd] day of October, 2019 **ORDER** The petitioner herein has been arrayed as the sole accused in the instant Cyber Crime No.786/2019 of Elamakkara Police Station, Ernakulam, which has been registered for offences punishable under Sections 376 of the IPC and Sections 3 and 4 of the Protection of Children from Sexual Offences (POCSO)Act, 2012 on the basis of the First Information Statement given by the lady victim on 19.6.2019 at about 4.30 p.m. in respect of the alleged incident which happened on a day in March 2017. 2. The prosecution case in short is that the petitioner/accused, then aged 38 years is running an advertising firm, in which the minor victim girl, then aged 17 years was employed there, to cook and serve food to the other employees and that on a day in March 2017, when she was alone in the first floor of the office building, the petitioner had come from behind and embraced her and initially she sought to resist it and then, the petitioner told her that he would marry her and that then they were in love and that thereupon they had sexual intercourse. It appears that thereafter, the victim has left the employment and after completing the majority age of 18 B.A.No.6167/2019 3 years, she has married yet another man and a child was born to her in that wedlock. Subsequently, it appears that on the basis of her complaint/F.I.Statement two other crimes of rape has been registered as against the other accused persons, one of which is Annexure-A2 Crime No.686/2019 of Njarakkal Police Station, which has been registered for offences punishable under Sections 376, 450, 370 and 34 of the IPC and Section 75 of the Juvenile Justice (Care and Protection of Children) Act,2015 on 9.5.2019 at about 7.05 p.m. in respect of the alleged incident which happened on 28.4.2019. It is further stated that the instant Annexure-A1 Crime No.786/2019 of Elamakkara Police Station was a re- registered crime consequent to the transfer of the original crime filed as Crime No.504/2019 of Kunnathunadu Police Station for the very same offences in relation to the very same incident. The Police, after investigation, had transferred the said crime from Kunnathunadu Police Station, which led to the registration of Annexure-A1 Crime No.786/2019 of Elamakkara Police Station. Further it is seen from a mere reading of Annexure-A1 F.I.R. that the lady victim had come to the Police Station on the previous day of the submission of the said F.I. Statement for giving statement to yet another crime relating to sexual violence. 3. The learned counsel for the petitioner would point out B.A.No.6167/2019 4 that the alleged incident is said to have happened on a day in March 2017 whereas the F.I.S. has been lodged as late as on 30.5.2019 and the long delay of two years in the lodging of the F.I.S and the crime has not even been remotely explained by the prosecution in any manner and the said long and unexplained delay will vitiate the entire proceedings as it raises serious question marks about the credibility and believability of the story of the prosecutrix. Further that a reading of Annexure-A1 F.I.S. would make it clear like the day light that even the victim has admitted that she was having a love affair with the petitioner and that though she had initially resisted, he had assured her that he would marry her and they had sexual intercourse and that even if it is assumed that the prosecutorix’s case is broadly true, then it is a case of consent. In that regard, the learned counsel appearing for the petitioner would place serious reliance on the dictum laid down by the Apex Court in the celebrated case in _**Rameshwar S/o.Kalyan Singh**_ v. _**The State of Rajasthan**_ [AIR 1952 SC 54], wherein it has been held as follows in Paragraphs 15 to 19, which reads as follows: " _The first question is whether the law requires corroboration in these cases. Now the Evidence Act nowhere says so. On the other hand, when dealing with the testimony of an accomplice, though it says in section 114 (b) that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars, it makes it clear in section 133 that:_ _"An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because_ B.A.No.6167/2019 5 _it proceeds upon the uncorroborated testimony of an accomplice."_ _16. Now a woman who has been raped is not an accomplice. If she was ravished she is the victim of an outrage. If she consented there is no offence unless she is a married woman, in which case questions of adultery may arise. But adultery presupposes consent and so is not on the same footing as rape. In the case of a girl who is below the age of consent, her consent will not matter so far as the offence of rape is concerned, but if she consented her testimony will naturally be as suspect as that of an accomplice. So also in the case of unnatural offences. But in all these cases a large volume of case law has grown up which treats the evidence of the complainant somewhat along the same lines as accomplice evidence though often for widely differing reasons and the position now reached is that the rule about corroboration has hardened into one of law. But it is important to under- stand exactly what the rule is and what the expression "hardened into a rule of law" means._ _17. In my judgment, this branch of the law is the same as in England and I am of opinion that the lucid exposition of it given by Lord Reading, the Lord Chief Justice of England, in The King v. Baskerville(1) cannot be bettered._ _18. In that case, Baskerville had been convicted of having committed acts of gross indecency with the two boys. (There the boys were accomplices because they were freely consenting parties and there was no use of force). The learned Chief Justice says at page 663 :-_ _"There is no doubt that the uncorroborated evidence of an accomplice is admissible in law...... But it has long been a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, and, in the discretion of the judge, to advise them not to convict upon such evidence; but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence......_ _This rule of practice has become virtually equivalent to a rule of law, and since the Court of Criminal Appeal came into operation this Court has held that, in the absence of such a warning by the judge, the conviction must be quashed...... If after the proper caution by the judge the jury nevertheless convict the prisoner, this Court will not quash the conviction merely upon the ground that the accom- plice's testimony was uncorroborated."_ _That, in my opinion, is exactly the law in India so far as accomplices are concerned and it is certainly not any higher in the case of sexual offences. The only clarifica- tion necessary_ B.A.No.6167/2019 6 _for purposes of this country is where this class of offence is sometimes tried by a judge without the aid of a jury. In these cases it is necessary that the judge should give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corrob- oration in that particular case. I am of opinion that the learned High Court Judges were wrong in thinking that they could not, as a matter of law, convict without corrobora tion._ _19. There is a class of cases which considers that though corroboration should ordinarily be required in the case of a grown-up woman it is unnecessary in the case of a child of tender years. Bishram. v. Emperor(1) is typical of that point of view. On the other hand, the Privy Council has said in_ Mohamed Sugal Esa v. The King _A.I.R,. (33) 1946 P. C. 3 at p.5, that as a matter of prudence a conviction should not ordinarily be based on the uncorroborated evidence of a child witness. In my opinion, the true rule is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the judge. In a jury case he must tell the jury of it and in a non-jury case he must show that it is present to his mind by indicating that in his judgment. But he should also point out that corroboration can be dispensed with if, in the particular circumstances of the case before him, either the jury, or, when there is no jury, he himself, is satisfied that it is safe to do so. The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a con- viction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child, coupled with other circumstances appearing in the case, such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corrobora- tion unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."_ 4. On the basis of the above said dictum laid down by the Apex Court in the said celebrated case _**Rameshwar's Case**_ (supra), Sri.P.B. Ajoy, learned counsel appearing for the petitioner/accused B.A.No.6167/2019 7 would strongly urge that the admitted case of the prosecution brings out a clear case of consent and even if the victim is a minor, the dictum laid down by the Apex Court in the aforesaid judgment would apply on all fours as the victim therein is also a minor below the age of sixteen, which was then consenting age. Accordingly, it is urged that as held by the Apex Court in _**Rameshwar's Case**_ (supra), the version given by a consenting victim even if she is a minor has to be treated with a same caution as an accomplice and that it requires corroboration for its veracity and reliance so as to make it sufficient to convict an accused for the alleged offence. That in the instant case, even more than two long years have expired as between the incident and the date of lodging of the F.I.S. and admittedly, no medical examination has been done etc. and there are no other witnesses, there is absolutely no corroboration of the above said version made by the victim against the petitioner. Further, the learned counsel for the petitioner would point out that now the lady victim has filed an application for getting herself impleaded in the present bail proceedings and that she has already filed an affidavit dated 23.9.2019 before this Court in the present bail application, wherein she has stated that it is only account of the pressure exerted on her by her husband that she was forced to make allegations against the petitioner and that no such incident as alleged against the B.A.No.6167/2019 8 petitioner in the instant case has happened and that she does not propose to proceed against him etc. 5. On the above said basis, Sri. P.B. Ajoy, learned counsel appearing for the petitioner/accused would strongly urge that the custodial interrogation of the petitioner may not be necessary for effectuating smooth and proper conduct of the investigation in this case and that this Court may order to grant him anticipatory bail subject to stringent conditions. 6. Per contra, the learned Public Prosecutor would point out that in the facts of the above said case dealt with by the Apex Court in _**Rameshwar's Case**_ case (supra), ultimately, on facts, the Apex Court has held that the accused therein is to be convicted for the alleged offence, even though there was no independent corroboration and that therefore, the above said principles laid down by the Apex Court is only rule of caution given to the criminal courts in appreciation of evidence in such cases and that it is not a mandatory rule. The learned Public Prosecutor has seriously opposed the grant of anticipatory bail and has pointed out that there is possibility of the petitioner intimidating and influencing the witnesses and it is quite possible that even the present stand taken by the victim is only on account of the influence exerted by her husband, as he is financially very sound etc. B.A.No.6167/2019 9 7. After hearing both sides and after careful evaluation of the facts and circumstances of the case, more particularly, taking into account the long and unexplained delay in the lodging of the instant crime and the F.I.S., and some other attendant circumstances, this Court is persuaded to take the view that petitioner has made out a strong probable case that his custodial interrogation may not really be warranted or necessary for effectuating the proper and fair conduct o the investigation in this crime. However, the petitioner will have to fully co-operate with the Investigating Officer in the interrogation process and in the further steps of the investigation including the conduct of the potency test etc. However, in order to alleviate the apprehension raised by the prosecution, it is proposed to order as a safeguard that the petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station, where the lady victim is residing until the completion of the investigation in this case, subject to certain exceptions which will be dealt with hereinafter. It is brought to the notice of this Court that the petitioner’s workplace is in Elamakkara, Ernakulam which is within the limits of the Elamakkara Police Station and his permanent residence is at Pattambi, Palakkad District. Going by the descriptions in Annexure-1 Crime and Anenxure-2 Crime, it appears that the lady victim was shown in different residential addresses. Hence, the B.A.No.6167/2019 10 ## following directions and orders are passed: - _1) The petitioner will immediately personally appear before the Investigating Officer in relation to the above said forest crime, for interrogation purposes without any further delay, at any rate, by 10 a.m. on any day on or before 11.11.2019._ - _2) The petitioner will fully co-operate with the Investigating Officer in the above interrogation process including the conduct of potency test, if so required by the Investigating Officer ._ - _3) After the interrogation process is over, if the Investigating Officer arrests the petitioner in relation to the above said crime, then he shall be released on bail on his executing a bond for Rs.40,000/- (Rupees Forty thousand only) and on his furnishing two solvent sureties each to the satisfaction of the Investigating Officer concerned._ However, the grant of bail will be subject to the following conditions: - _(i) The petitioner will report before the Investigating Officer concerned at any time between 9.00 a.m.and 1:00 p.m. on every 2[nd] and 4[th] Saturdays for the next 3 months. Thereafter the petitioner shall report before the Investigating Officer as and when directed by him._ - _(ii) The petitioner shall not intimidate or attempt to influence the victim, witnesses; nor shall tamper with the evidence._ - _(iii). The petitioner shall not commit any similar offence while on bail._ B.A.No.6167/2019 11 - _(iv) The petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station where the lady victim is residing until the completion of the investigation process in this crime, except for the limited purpose of reporting before the Investigating Officer in this case or in any other crimes and for attending to the courts in connection with this case or any other cases or for contacting his advocate/lawyer, etc._ - _(v) However, if there is any genuine need, the petitioner may temporarily enter into the said Police Station limit but only with due permission of the Investigating Officer._ In case of violation of any of the above conditions, the jurisdictional Court concerned will stand hereby empowered to consider the application for cancellation of bail, if required, and pass appropriate orders in accordance with the law. With these observations and directions, the above bail application will stand disposed of. ## **sd/-** ## **ALEXANDER THOMAS, JUDGE.** acd B.A.No.6167/2019 12