Sujith Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 7[TH] DAY OF JULY 2022 / 16TH ASHADHA, 1944** ## **BAIL APPL. NO. 3619 OF 2022** **CRIME NO.20/2022 OF PETTAH POLICE STATION,** ## **THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED:** **SUJITH KUMAR AGED 39 YEARS,S/O KRISHNAN RESIDING AT HARBOUR ENGINEERING DEPARTMENT STAFF QUARTERS NO.2E KAMALESWARAM,MANACAUD PO, THIRUVANANTHAPURAM, PIN - 695009** **BY ADVS. SRI.S.RAJEEV SRI.V.VINAY SRI.M.S.ANEER SRI.SARATH K.P.** ## **RESPONDENTS/DEFACTO COMPLAINANT/STATE:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031 (CRIME NO.20/2022 OF PETTAH POLICE STATION, THIRUVANANTHAPURAM DISTRICT - 695024** **2 STATION HOUSE OFFICER PETTAH POLICE STATION, (CRIME NO 20/2022 OF PETTAH POLICE STATION, THIRUVANANTHAPURAM DISTRICT, PIN - 695024** - ***3 "XXX"** ***(ADDL. R3 IS IMPLEADED AS PER ORDER DATED 9/6/2022 IN CRL.M.A.NO.2/2022.** B.A. No.3619/22 **-:2:-** **BY ADVS. SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.M.A.MOHAMMED SIRAJ SRI.R.GITHESH SRI.AJAY BEN JOSE SRI.MANJUNATH MENON SRI.SACHIN JACOB AMBAT SMT.ANNA LINDA V.J SRI.HARIKRISHNAN S.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.07.2022, THE COURT ON 07.07.2022 PASSED THE FOLLOWING:** B.A. No.3619/22 **-:3:-** ## **BECHU KURIAN THOMAS, J. -------------------------------B.A. No.3619 of 2022 ---------------------------------** Dated this the 7[th] day of July, 2022 ## **ORDER** Petitioner is the accused in Crime No.20 of 2022 of Pettah Police Station, Thiruvananthapuram. He seeks pre-arrest bail under section 438 of the Code of Criminal Procedure, 1973. 2. The prosecution alleges that petitioner had committed rape on the defacto complainant on 27.09.2020 after taking her to a hotel near 'Akulam' and thereby committed the offences under sections 376(2), 354-D(1)(i), 341, 342, 506 and 323 of the Indian Penal Code, 1860. 3. Sri.S.Rajeev, learned counsel for the petitioner contended that the prosecution case is totally false and that at the most the allegations will reveal only a consensual relationship. He further pointed out that the complaint has been preferred only after one and a half years of the alleged incident, which itself shows the falsity of the allegations. It was submitted that petitioner was working under the defacto complainant, who B.A. No.3619/22 **-:4:-** is an Assistant Executive Engineer with an M.Tech degree and her husband is working abroad. Petitioner further contended that even going by the version of the defacto complainant herself, on 27.09.2020, she went with the accused to an OYO Hotel and was subjected to rape inside the hotel room, which by itself is not worthy of belief. Learned counsel further pointed out that there were other instances when the defacto complainant had gone with the petitioner to different tourist resorts which was suppressed by her and which indicates the consensual nature of their relationship. On the above basis, petitioner urged this Court to grant pre-arrest bail and offered to abide by any conditions. 4. Sri.S.Sreekumar, learned Senior Counsel duly instructed by Adv.Martin Jose, appearing for the defacto complainant, on the other hand, submitted that on 27.09.2020, the defacto complainant was invited for a discussion by the petitioner and without doubting the intentions behind the invite, she went to the hotel at 12.45 pm and thereafter petitioner forcefully committed sexual assault on her. Learned Senior Counsel contended that since the victim was a married lady, she could not bear the trauma nor reveal the same to others, fearing trouble in the existing marriage and therefore she did not reveal B.A. No.3619/22 **-:5:-** the incident of rape. However, unable to cope up with the frequent messages, the defacto complainant gave a written complaint to the Chief Engineer of the Department on 23.09.2021 and thereafter acting on the complaint, petitioner was even transferred. Subsequently, on 11.12.2021, petitioner behaved violently towards the victim which compelled her to file a complaint before the Police. Later, when the petitioner started to compel the victim to indulge in further sexual relationships, by reminding her of the rape that took place on 27.09.2020, the victim had no other alternative other than to file the present complaint. 5. Smt.M.K.Pushpalatha, learned Public Prosecutor also opposed the grant of bail and pointed out that the allegations constitute a clear instance of rape and hence releasing the petitioner on pre-arrest bail would certainly prejudice the entire investigation. According to the learned Public Prosecutor, the manner in which the petitioner has committed the offence is clearly indicative of the nature of crime and unless custodial interrogation is granted, the truth will not be unravelled. 6. I have considered the rival contentions. 7. Both the accused and the victim are married persons. B.A. No.3619/22 **-:6:-** The accused was deputed to assist the victim by their employer. Both of them are well educated and placed in good positions. They are aware of the nature of their acts. The incident of rape is alleged to have occurred on 27-09-2020. She had not complained to anyone. However, on 23-09-2021 she filed a complaint to the Chief Engineer stating that petitioner had been creating difficulties and harassing her. There was presumably no allegation of rape in the said complaint. Nevertheless, despite asking him to stop the harassment, petitioner continued to indulge in harassing the victim through WhatsApp and other messages compelling the victim to block him on social media. Even thereafter, petitioner continued the harassment through messages sent on 03.09.2021, 07.09.2021 and 10.09.2021. Admittedly based on the above complaint, the department (employer of the petitioner) transferred him to another station. The WhatsApp chats alleged to have been sent by the petitioner do not indicate, a consensual relationship. However, the petitioner has questioned the authenticity of the said WhatsApp chats. The contention of the petitioner that the WhatsApp chats produced are not even communications between the petitioner and the victim and further that even the sequence of the chats is B.A. No.3619/22 **-:7:-** allegedly rearranged to suit the allegation of the victim and taken out of context finds some substance, at least prima facie. 8. There is a delay of one and a half years in preferring the complaint. Even the complaint of the victim to the head of the department submitted on 23-09-2021 and that of 11-12-2021 did not mention any instance of rape. However, the delay by itself cannot be viewed seriously in the light of the nature of allegations and considering the fact that the victim is a married lady. A victim, including a married lady, may hesitate to file a complaint alleging rape fearing social ostracism and various other factors. They may take time weighing the pros and cons of filing a complaint alleging rape. The reaction to an incident of rape may vary from person to person. Manifold factors may delay the filing of a complaint alleging rape. The hesitation in filing complaints due to social and other reasons cannot be taken as a circumstance against the victim of a rape. Therefore, the delay in making an allegation of rape by itself, cannot be viewed as a factor that vitiates the allegations of the offence of rape. 9. Considering the nature of allegations, I had called for the case diary. On perusing the case diary, it is noticed that the Investigating Officer has already unearthed certain materials B.A. No.3619/22 **-:8:-** which gives a different insight to the whole story. The details in the case diary indicate, at least prima facie, that, the petitioner and the victim had stayed in different hotels at different places on different days, even prior to the alleged date of incident. The room bookings were made in advance and both had even given their driving licenses or voter’s id cards as proof of their identity while checking into the hotels. The victim had not mentioned in her statement any such past instances. The materials unearthed indicate, to some extent, a possibility of a different story altogether. 10. The material in the case diary indicates a friendly relationship prior to the date of the incident and even immediately after the date of the incident. A consensual sexual relationship cannot be converted into rape merely because the relationship turned sour later. Of course, that is a matter to be investigated in detail. 11. However, taking into consideration the circumstances and bearing in mind the details in the case diary, I am of the view that the petitioner ought to be released on bail if arrested, subject to limited custody, as contemplated in the decision of the Supreme Court in **Sushila Aggarwal and Others v. State** B.A. No.3619/22 **-:9:-** ## **(NCT of Delhi) and Another** [(2020) 5 SCC 1]. 12. Accordingly, I allow this application for pre-arrest bail on the following conditions: - (i) Petitioner shall surrender before the Investigating Officer on 11-07-2022 at 09.00 AM for interrogation. - (ii) Petitioner can be interrogated on all or any of the seven days falling within the period from 11-07-2022 till 18-07-2022, from 09.00 AM till 06.00 PM every day, if required. The petitioner shall be deemed to be under custody during the aforesaid period for facilitating the requirements of the investigation. - (iii) If the Investigating Officer intends to arrest the petitioner, then he shall be released on bail on the petitioner executing a bond for Rs.1,00,000/(Rupees One Lakh only) with two solvent sureties each for the like sum before the Investigating Officer. - (iv) Petitioner shall appear before the Investigating Officer as and when called for and shall subject himself for further interrogation also. - (v) Petitioner shall not contact or interact with the victim or any of the witnesses. - (vi) Petitioner shall not indulge in any form of attack through the social media or other modes against the victim or her family. - (vii) Petitioner shall not leave the State of Kerala or India without prior permission of the jurisdictional court and shall co-operate with the investigation. - (viii) Petitioner shall not commit any other offence while he is on bail. 13. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the B.A. No.3619/22 **-:10:-** application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court. 14. It is clarified that the observations made in this order are purely for the purpose of this bail application and shall not have any effect on the merits of the case at the time of trial or other proceedings. Sd/- **BECHU KURIAN THOMAS JUDGE** vps /True Copy/ PS to Judge