Sudhakaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 15[TH] DAY OF JUNE 2023 / 25TH JYAISHTA, 1945 BAIL APPL. NO. 3691 OF 2023** **CRIME NO 145 OF 2023 OF BALARAMAPURAM POLICE STATION** ## **PETITIONER/ACCUSED:** SUDHAKARAN AGED 63 YEARS S/O. PONNAPPAN ASARI, VIPANCHIKA, CHAVADINADA, VENGANOOR. P.O., THIRUVANANTHAPURAM, PIN - 695523 BY ADVS. K.K.DHEERENDRAKRISHNAN N.P.ASHA ## **RESPONDENT/STATE AND VICTIM:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS. PUBLIC PROSECUTOR KISHORE D R.MURALEEKRISHNAN (MALAKKARA)(K/000583/2008) ## **OTHER PRESENT:** ADV SEETHA S - SR PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No. 3691 of 2023 2 ## **O R D E R** This is an application filed under Section 439 of the Code of Criminal Procedure seeking regular bail. 2. The petitioner is the sole accused in Crime No.154/2023 of Balaramapuram Police Station. The offences alleged against the petitioner are punishable under Sections 376(2)(j), 376(2)(n), 376(2)(f), 376AB, 354A(1)(ii) of the Indian Penal Code, and Section 3(a)(b) read with Section 4, 5(1)(m) read with Section 6, Section 7 read with Section 8, 9(1)(m) read with Section 10, 11(1)(iii) 12 & 15 of the Protection of Children from Sexual Offences Act, 2012. 3. The prosecution case is that, on 28.04.2019, the petitioner, with sexual intent, exhibited obscene videos and photographs in his mobile to the defacto complainant, a girl aged nine years at the relevant time. It is also alleged that he inserted his hand through her dress and caressed her breast as well as her vagina. On another occasion, the petitioner inserted his private parts into the mouth of the victim and rubbed on the private parts of the victim. The last incident was reported to be committed on ## B.A.No. 3691 of 2023 3 24.12.2022, where the victim was shown obscene videos on the mobile phone by the petitioner. The crime was registered based on the information furnished by the mother of the victim on 29.01.2023, and as part of the investigation, the petitioner was arrested on 30.01.2023; since then, he has been under judicial detention. This application for regular bail is submitted by the petitioner in such circumstances. 4. Heard Sri.K.K.Dheerendrakrishnan, the learned counsel for the petitioner and Sri.D.Kishore, the learned counsel appearing for the defacto complainant and Smt.Seetha.S., the learned Senior Public Prosecutor for the State. 5. The learned counsel for the petitioner submits that the petitioner was falsely implicated in the said case. According to him, there were some disputes between the petitioner and the defacto complainant's family. The allegations raised are concocted. It is pointed out that the offences punishable under Section 376(2)(n) would not be attracted, as even as per the statements of the victim, there are no repeated instances of penetrative sexual assault. Similarly, an offence under Section 376(2)(f) of IPC also would not be attracted, as there is no ## B.A.No. 3691 of 2023 4 relationship between the petitioner and the victim, and he was not in a position of trust or authority towards her. According to him, the case itself is a concocted story, and now the investigation has been completed and the final report submitted. The matter is pending as S.C.No.715/2023 before the Special Court (for the trial of the offences under the POCSO Act), Thiruvananthapuram. The learned counsel further contends that there is no necessity for further incarceration of the petitioner and that he is a person aged 63 years and has physical ailments. He is ready and willing to abide by any conditions that may be imposed by this Court. 6. The learned Public Prosecutor and the learned counsel appearing for the defacto complainant would stoutly oppose the prayer sought by the petitioner for bail. The learned Public Prosecutor made available the relevant documents relating to the case, including the statements given by the victim before the Police as well as before the learned Magistrate under Section 164 of Cr.P.C. By placing reliance upon the same, it is pointed out that allegations raised against the petitioner are specific and very serious in nature. Therefore, the learned Public Prosecutor opposes the bail application. ## B.A.No. 3691 of 2023 5 7. The learned counsel for the defacto complainant would deny the contention put forward by the learned counsel for the petitioner that there were some disputes between the petitioner and the defacto complainant's family. According to the learned counsel for the defacto complainant, the matter came to light when the mother of the defacto complainant noticed certain behavioral changes in her daughter, and thereupon, she was subjected to counseling. The sexual act allegedly committed by the petitioner was revealed in such circumstances, and the matter was accordingly reported to the Police. The learned counsel for the victim also places reliance upon the decision rendered by the Hon'ble Supreme Court in **State of Bihar v. Rajballav Prasad @ Rajballav Pd Yadav @ Rajballabh** [2017(2) SCC 178], wherein the guidelines to be followed while considering the application for bail involving serious offences were laid down. It is pointed out that, on account of the atrocities committed by the petitioner, the victim is frightened, and they are forced to live in rented premises leaving their own house, which is situated near the residence of the petitioner herein. ## B.A.No. 3691 of 2023 6 8. In response to the contention raised by the learned counsel for the petitioner with regard to the applicability of the offence under Section 376(2)(f), the learned counsel for the defacto complainant points out that the aforesaid provision is not confined to any relative or guardian, it is applicable to a person in a position of trust. In this case, the petitioner was an elderly person living in the neighbourhood so he could be treated as a person in a position of trust. Therefore, the offence under Section 376(2)(f) would be attracted. In such circumstances, the dismissal of the bail application was sought. 9. I have gone through the records and heard the contentions raised by all the parties. From the contents of the statements given by the victim under Section 161 Cr.P.C. and 164 Cr.P.C., it can be seen that a consistent version of the entire sequence of events leading to the commission of crime has been clearly mentioned. Even at the time of giving such statements, the victim was aged only 12 years. Even though learned counsel for the petitioner pointed out that the petitioner and the family of the victim were not on good terms, there are no materials available before me indicating the same. Moreover, the learned counsel for ## B.A.No. 3691 of 2023 7 the defacto complainant clearly denied the said aspect. The learned counsel for the petitioner also relied on the statement of the victim given to the Doctor at the time of examination. It was pointed out that, in the said statement, no penetrative sexual assault has been mentioned. However, I am of the view that that cannot be taken as a reason to suspect the genuineness of the allegations raised against him. As far as the statement given before the Doctor is concerned, it is not expected to contain each and every act of sexual assault, as it would only contain a concise description of the events which necessitated the medical examination. On the other hand, a clear description of the events of sexual assaults has been made by the victim in the statements under Sections 161 and 164 of Cr.P.C. Both are consistent in nature, as mentioned above. 10. Thus, it is evident that the allegations raised against the petitioner are serious and heinous. The learned counsel for the defacto complainant also pointed out that the victim is frightened on account of the acts committed by the petitioner. The Honourable Supreme Court, in **Rajballav Prasad'** s case **,** after referring in para.24, it was observed as follows: B.A.No. 3691 of 2023 8 “24. We are conscious of the fact that the respondent is only an under-trial and his liberty is also a relevant consideration. However, equally important consideration is the interest of the society and fair trail of the case. Thus, undoubtedly the courts have to adopt a liberal approach while considering bail applications of accused persons. However, in a given case, if it is found that there is a possibility of interdicting fair trial by the accused if released on bail., this public interest of fair trial would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is this need for larger public interest to ensure that criminal justice delivery system works efficiently, smoothly and in a fair manner that has to be given prime importance in such situations. After all, if there is a threat to fair trial because of intimidation of witnesses etc., that would happen because of wrongdoing of the accused himself, and the consequences thereof, he has to suffer. This is so beautifully captured by this Court in Masroor v. State of Uttar Pradesh & Anr., 2009 (14) SCC 286 in the following words: "15. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned. In this context, the following observations of this Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan, 1987 (2) SCC 684 are quite apposite: (SCC p. 691, para 6) "6... Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution.” When applying the principles laid down by the Hon'ble Supreme Court in the facts and circumstances of the case, I am of the view ## B.A.No. 3691 of 2023 9 that the contention put forward by the learned counsel for the defacto complainant cannot be simply brushed aside. The allegations raised against the petitioner are very serious. When the severity of punishment is taken into consideration, it can be seen that one of the offences attracts the punishment of life imprisonment. In such circumstances, I am of the view that unless there are special reasons in existence, the release of the petitioner cannot be ordered. In such circumstances, I do not find any justifiable reason to release the petitioner on bail merely on the ground that the final report has been submitted in this case. Thus, I do not find any merit in this application, and accordingly, this application is dismissed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk