Suresh T.D. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 18TH DAY OF DECEMBER 2019 / 27TH AGRAHAYANA, 1941** ## **Bail Appl..No.8736 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRMP 5142/2019 DATED 22-11-2019 OF DISTRICT COURT& SESSIONS COURT,PATHANAMTHITTA** ## **PETITIONER/ACCUSED:** **SURESH T.D. AGED 36 YEARS S/O DAMODARAN, VISHNU NIVAS, MUTTATHUKONAM.P.O, CHENNEERKARA, KOZHENCHERRY TALUK, PATHANAMTHITTA.** **BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 ADDL. R2 SUCHITHRA D. AGED 43 YEARS W/O BHADRAN .C. G. CHIRATTAMALA KIZHAKKETHIL HOUSE , ELAVUMTHITTA. P .O , PATHANAMTHITTA DISTRICT-689625.** **IS IMPLEADED AS PER THE ORDER DATED 18.12.2019 IN CRL.M.A.NO.1/2019** **BY ADVS. SRI.M.P.KRISHNAN NAIR-R2 SRI.JOSEPH THEKKEKURUVANAL-R2 SRI. AMJAD ALI- PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A. No. 8736 of 2019 2 ## **ALEXANDER THOMAS, J.** -----------------------------------B.A. No. 8736 of 2019 -----------------------------------Dated this the 18[th] day of December, 2019 ## **O R D E R** The petitioner herein has been arrayed as the sole accused in the instant Crime No.543 of 2019 of Elavumthitta Police Station, Pathanamthitta, which has been registered for the offences punishable under Secs. 376 and 384 of IPC and Sec.66(E) of Information Technology Act, 2000. The crime has been registered on basis of the F.I Statement given by the lady defacto complainant on 18-09-2019 at about 5.00 p.m, in respect of the alleged incidents, which had happened for the period from 01-03-2016 to 16-08-2019. 2. The brief of the prosecution case as disclosed in the abovesaid F.I statement is that, the lady defacto complainant aged 43 years, is a married woman and having children and that she is working in Government service as a Premetric Hostel Warden under the social welfare department and that the petitioner/accused now aged 36 years, had became acquainted with the lady as his niece is staying in one of the metric hostels and that the petitioner had B.A. No. 8736 of 2019 3 introduced himself to the lady defacto complainant as a superior officer in the Scheduled Caste and Scheduled Tribe development department of the State Government and they became intimate and as requested by him, she had voluntarily sent her nude pictures to him and he later threatened her that he would use her photographs unless she accedes his demands of sexual favours and that on 01-03-2016, she had gone along with him to various places like Kanyakumari, Nagarkovil, Thambanoor etc., where they stayed in lodges and had sexual intercourse and thereafter they had gone to various other places, and in January, 2017 had stayed in a lodge near Trivandrum, where they had sexual intercourse. Further that the petitioner had forwarded some of her intimate video pictures to her friends and out of threat she had again gone with him to Nagarkovil on 16-08-2019 and had stayed in a hotel called 'Ganga Palace' there also they had sexual intercourse. That later she came to realise that the petitioner is actually working in Assam rifles and that further that later he had also obtained about Rs.1 Lakh from her and has not given it back. Later her son and other family members have come to know these incidents and thereafter she reported the matter to the B.A. No. 8736 of 2019 4 Police. 3. The learned counsel for the petitioner would point out that the abovesaid allegations are false and fabricated. Further that a reading of the FIS itself would make it clear that the allegation that the lady was under the impression that the petitioner was her superior officer in the Scheduled Caste and Scheduled Tribe development department etc., is absolutely false, for the simple reason that admittedly the lady is working in the Government Service in Premetric Hostel and any cursory enquiry by her would easily reveal that the petitioner is not in any manner associated with the said Government department and further that if a close and intelligent reading of the FIS would make it clear that even if it is assumed that the incidents narrated therein are broadly true then, it could have happened only on the basis of consensual sexual relationship between the parties and not otherwise and therefore none of the vital ingredients of the offence of rape as per Sec.376 of IPC are not made out. Further it is pointed out that the allegation that the petitioner had threatened her that he would disclose her intimate pictures etc., are all made only because even according to B.A. No. 8736 of 2019 5 her she has given the complaint only after family members have come to know the incidents and that now she want to justify her stand before the family members by alleging that the petitioner has forcefully raped her etc,. Further that the petitioner is working as a Hawildar in the Indian Army and he is not in any manner associated with any Government departments. 4. The learned counsel for the petitioner would also place reliance on various decisions in the Apex Court and various High Courts including this Court, regarding which has laid down the substantial distinction between rape and consensual sexual relationship between the parties, wherein it has been held that where a man and woman continuously have an affair with sexual relationship for quite sometime, then it is very difficult to make out the case of rape etc,. Further it is also contend that the instant case, there is a delay of three and half long years as between the first incident and the date of reporting of the crime and the delay has not been reasonably explained in any manner by the prosecution and hence the long and unexplained delay would vitiate the entire criminal proceedings as it affects the very credibility and believably of B.A. No. 8736 of 2019 6 the prosecution story. In that regard the learned counsel for the petitioner would place reliance on various judgments of the Apex Court as in _**Thulia Kali v. The State of Tamilnadu (AIR (1973) SC 501 )**_ and _**State of Andrapradesh v. M.Madusudhan Rao [(2008) 15 SCC 582]**_ etc., wherein it has been held that delay in registration of the FIR will more often than not, result in embellishments and exaggerations, which are creations of afterthoughts. Delayed report, not only gets bereft of the advantages of spontaneity, but the danger of introduction of coloured versions exaggerated account of incidents or a concocted story as a result of deliberations and consultation also creeps in, which would cast a serious doubt, very veracity of the prosecution story. Therefore, it has been held that it is highly essential that the delay in lodging the FIR should be satisfactorily explained by the prosecution, etc. In the light of these aspects the learned counsel for the petitioner would urge that this Court may grant anticipatory bail to the petitioner, subject to any stringent conditions. 5. The learned Prosecutor and Sri.M.P.Krishnan Nair, learned Advocate appearing for the lady defacto complainant has strongly B.A. No. 8736 of 2019 7 opposed the plea for anticipatory bail. The learned Advocate appearing for the lady defacto complainant would urge that the specific case of the FIS that the petitioner after obtaining her intimate pictures had threatened very often and that he would use it unless she accedes his sexual demands and that therefore cannot be said that there is consensual sexual relationship between parties etc,. The learned Prosecutor has also submitted that there is a strong possibility of the petitioner intimidating, influencing the witnesses, more particularly the lady defacto complainant, if he is let out on bail. 6. Per contra, the learned counsel for the petitioner would point out that the allegations that the petitioner had threatened the lady defacto complainant that he would use her intimate pictures etc., is absolutely false and baseless and that a reading of the FIS make it clear that series of sexual encounters between the two persons has taken place and both are married persons and the fact that the lady has now given complaint to the Police should also raise serious questions as to why she had not done it earlier and that the lady has admitted that later, when her son and other members of the family has come to know the incidents and thereafter she reported B.A. No. 8736 of 2019 8 the matter to the Police. On that basis the learned counsel for the petitioner would point out that it is only after the incidents became known to the other members of the family that she has raised such allegations in order to save her face and give her some standings in front of her family members and other relatives. That if the alleged sexual incidents narrated in FIS are assumed to be true, then the same could have happened only on the basis of consensual sexual relationship and not otherwise. 7. Further the learned counsel for the petitioner also pointed out that the allegations made in the FIS to the effect that the petitioner has sent the lady's intimate pictures to many of her relatives and friends are absolutely false and baseless for the simple reason that if as a matter of fact, if such pictures have been sent to the lady's friends and relatives then they could have easily reported the matter to the Police, so that the Police could have seized the same and the fact that no such effort has been taken by the lady defacto complainant till date regarding such alleged pictures said to have been sent to her relatives and friends would also be clearly disclose the facts that the abovesaid allegations are false and have been only B.A. No. 8736 of 2019 9 made to give strength and colour to the false allegations made in the FIS. 8. After hearing both sides and after careful evaluation of the facts and circumstances of this case, more particularly taking note of the long delay of about three years in the lodging of case and also testing the facts of the case, in the light of judicial precedents which has laid down substantial distinction between rape and consensual sexual intercourse between the parties, this Court is inclined to take the view that the petitioner has made out a strong probable case that his custodial interrogation may not really be necessary or warranted for the smooth and effective conduct of the investigation in this crime. However taking note of the abovesaid serous apprehension raised by the prosecution, it is ordered as safeguard that the petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station, where the lady defacto complainant is residing or working, until the completion of the trial, subject to certain exceptions, which will be dealt with hereinafter. 9. Accordingly, it is ordered that in the event of the petitioner B.A. No. 8736 of 2019 10 being arrested in connection with crime No.543/2019 of Elavumthitta Police Station, then the petitioner shall be released on bail on his executing a bond for Rs.40,000/- (Rupees Forty Thousand only) and on furnishing two solvent sureties for the like sum, both to the satisfaction of the Investigating Officer concerned. However, the grant of bail shall be subject to the following conditions: - _(i) The petitioner will fully co-operate with the Investigating Officer in the interrogation process and will also appear before the Investigating Officer for the interrogation process as and when directed by the said officer and should also co-operate in the conduct of any medical tests, including potency test._ - _(ii) The petitioner shall not involve in any criminal offences of similar nature._ - _(iii) The petitioner shall not influence the witnesses or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _(iv) The petitioner shall not enter into or reside anywhere within the territorial limits of the police station where the lady defacto complainant is residing or working until the conclusion of the trial process, except for the limited purpose of reporting before the Investigating Officer in this case or in any other cases or for attending to any courts in connection with this case or any other cases or for contacting his advocate/lawyer, etc._ - _(v) However, if there is any emergent and genuine reasons for the petitioner to go to that area, then he may do so, but only with prior permission of the Investigating Officer concerned._ B.A. No. 8736 of 2019 11 10. If there is any violation of the above said conditions by the petitioner, then the jurisdictional court concerned will stand hereby empowered to consider the plea for cancellation of bail at the appropriate time. With these observations and directions, the above Bail Application will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS