Vinod v. State & Defacto Complainant; Rahul v. State & Defacto Complainant

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 18TH DAY OF SEPTEMBER 2019 / 27TH BHADRA, 1941 BAIL APPL.NO.6526 OF 2019** **CRIME NO.774/2019 OF THRIKKUNNAPPUZHA POLICE STATION, ALAPPUZHA** ## **PETITIONER/ACCUSED:** **VINOD, AGED 32 YEARS, S/O.NANDAKUMAR, VELLAKADAYIL HOUSE, THOTTAPALLY MURI, PURAKKADU, ALAPPUZHA. BY ADVS.SRI.MANSOOR B.H., SRI.ARUN CHANDRAN, SHRI.HARIMOHAN** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM-682 031.**| |**2**|**STATION HOUSE OFFICER**| ||**THRIKKUNNAPUZHA POLICE STATION,**| ||**ALAPPUZHA DISTRICT-688 024.**| ||**SRI.T.R.RENJITH, PUBLIC PROSECUTOR**| **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.09.2019, ALONG WITH B.A.NO.6504/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 18TH DAY OF SEPTEMBER 2019 / 27TH BHADRA, 1941 BAIL APPL.NO.6504 OF 2019 CRIME NO.776/2019 OF THRIKKUNNAPPUZHA POLICE STATION, ALAPPUZHA** ## **PETITIONER/ACCUSED:** ||**RAHUL, AGED 23 YEARS,**| |---|---| ||**S/O. RAJENDRAN, KARUTHEDATHU KIZHAKETHIL,**| ||**ERIKKAVU MURI, KUMARAPURAM, ALAPPUZHA.**| ||**BY ADVS.SRI.MANSOOR.B.H.,**| ||**SRI.ARUN CHANDRAN, SHRI.HARIMOHAN**| |**DENT**|**S/STATE & DEFACTO COMPLAINANT**<br>**:**| |**1**|**STATE OF KERALA**| ||**REP. BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM - 682 031**| |**2**|**STATION HOUSE OFFICER**| ||**THRIKKUNNAPUZHA POLICE STATION,**| ||**ALAPPUZHA DISTRICT - 688 024.**| ||**SRI.T.R.RENJITH, PUBLIC PROSECUTOR**| ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.09.2019, ALONG WITH B.A.NO.6526/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------- B.A. Nos. 6526 & 6504 of 2019 --------------------------------------Dated this the 18[th] day of September, 2019 ## O R D E R ## B.A. No. 6526 of 2019 The petitioner has been arrayed as the sole accused in the instant Crime No.774/2019 of Thrikkunnapuzha Police Station, which has been registered for offences punishable under Sec.376(2)(f) of the IPC and Secs.5n & 6 of the POCSO Act, 2012. The petitioner has been arrested in this case on 27.6.2019 and has been under judicial custody since then. 2. The prosecution case in short is that, the petitioner now aged 32 years is the maternal first cousin of the lady victim who is now aged 19 years. It appears that the parents of the lady victim are living separately and the victim's mother was residing along with the victim in the house belonging to the victim's mother's sister, where the said lady's husband is also residing. When the victim was found pregnant, she was taken to the hospital for medical termination of pregnancy, and there she had initially given statement to the Doctor who had conducted medical examination, that it was one Akhil, a migrant labourer, who is responsible for pregnancy and that he had B.A. Nos. 6526 & 6504 of 2019 **==> picture [19 x 9] intentionally omitted <==** raped her, etc. Later she had told the Police that the said Akhil is her maternal first cousin and later she told the Police that her mother's elder sister's husband had forcible sexual intercourse with her, which led to the pregnancy, etc. In the course of investigation of the said crime she had also told the Police that the petitioner herein, who is her maternal first cousin had come to her bedroom while she was studying in Std.X, some time in the year 2015 and had sexual intercourse with her, and thereby he has committed the abovesaid offences. It appears that the victim has not specified the month and day of occurrence of the instant incident, and her case is that it happened in the year 2015 and the FIS is given as late as on 22.6.2019. 3. Counsel for the petitioner would point out that the abovesaid allegations are all false and fabricated and that the Case Diary statements in this case would reveal that the victim has been changing her stand even regarding as to the person who was responsible for the alleged pregnancy, and that the long delay of more than 4 years in this case is ominous and would be fatal to the prosecution case as regards its very credibility and believability. Accordingly it is urged by the petitioner's counsel that further B.A. Nos. 6526 & 6504 of 2019 ..5.. detention of the petitioner is no longer necessary as he has already suffered detention to the last 85 days. 4. Learned Prosecutor has opposed the grant of regular bail and has pointed out that the allegations are very serious and further that there is strong possibility of the petitioner intimidating and influencing the witnesses more particularly the lady victim if he is let out on bail. 5. After hearing both sides and after careful evaluation of the facts of the case, more particularly the crucial aspect that there is long and unexplained delay of about 4 years in lodging of instant crime, this Court is inclined to take the view that further detention of the petitioner may not be necessary and he could be released on regular bail subject to stringent conditions. The apprehension raised by the prosecution should be duly factored in and it is proposed to order that the petitioner shall not visit or enter into the territorial limits of the Police Station within whose limits the lady victim is residing or studying until the conclusion of trial process, subject to certain exceptions that would be dealt with hereinafter. 6. Accordingly it is ordered that the petitioner shall be released on bail on his executing bond for Rs.40,000/- and on his B.A. Nos. 6526 & 6504 of 2019 ..6.. furnishing two solvent sureties for the like sum, both to the satisfaction of the competent court below concerned. However the grant of bail will be subject to the following conditions:- - _i. The applicant shall appear before the Investigating Officer (I.O.) on every 2[nd] and 4[th] Saturdays, at any time between 9 am and 1 pm, for a further period of 4 months or within such time limit that may be extended by the I.O. as he deems fit and proper._ - _ii. He shall not intimidate or attempt to influence the victim, witnesses; nor shall he tamper with the evidence._ - _iii. He shall not commit any offence while on bail._ - _iv. The petitioner shall not go anywhere near to the residence or educational institution of the lady victim._ - _v. The petitioner shall not enter into or reside within the territorial limits of the Police Station where the lady victim is residing until the conclusion of trial, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the Court in relation to this case or any other cases or for contacting his lawyers/advocates concerned._ - _vi. However if on account of any emergent personal need the petitioner wants to visit the said area, he may do so but only with the prior permission of the Investigating Officer concerned._ If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned shall stand hereby empowered to consider the plea for cancellation of bail if required, and pass appropriate orders in accordance with law. B.A. Nos. 6526 & 6504 of 2019 ..7.. With these observations and directions, the above Bail Application will stand disposed of. ## B.A. No. 6504 of 2019 7. The accused in this case is another maternal first cousin of the same victim who is involved in the crime in relation to B.A. No. 6526 of 2019 which has been dealt with herein above. In this case it appears that the victim has given statement to the Doctor and the Police in relation to her pregnancy as stated in B.A. No. 6526 of 2019. In this case also, the victim has alleged that the petitioner accused herein who is her maternal first cousin had come to her house on a day when she was studying in Std.X in the year 2015 and when she was taking bath he had entered into her bathroom, caught hold of her breast and inserted his finger into her private part, etc. 8. Counsel for the petitioner would point out that in this case also there is long delay of more than 4 years in lodging of the present crime in respect of the alleged incidents which have happened in the year 2015, as the FIS is given only as late as on B.A. Nos. 6526 & 6504 of 2019 ..8.. 22.6.2019. The petitioner has been arrested on 27.6.2019 and has been under judicial custody since then. Counsel for the petitioner would point out that the long and unexplained delay of 4 years is fatal to the prosecution case and the victim has changed her stand in relation to the incidents relating to her pregnancy, in which now her mother's elder sister's husband has been implicated. It is only in the course of investigation of that crime, that the victim has made certain other allegations against the present accused as well. Accordingly it is urged by the petitioner's counsel that this Court may order to release him on regular bail subject to any stringent conditions 9. Learned Prosecutor has seriously opposed the grant of bail and has pointed out that there is strong possibility of the petitioner intimidating and influencing the witnesses more particularly the lady victim if he is let out on bail. 10. After hearing both sides and after careful evaluation of the facts of the case, more particularly the crucial aspect that there is long and unexplained delay of about 4 years in lodging of instant crime and also the fact that the petitioner has already undergone detention for the last 85 days, this Court is inclined to take the view B.A. Nos. 6526 & 6504 of 2019 **==> picture [19 x 9] intentionally omitted <==** that further detention of the petitioner may not be necessary and he could be released on regular bail subject to stringent conditions as dealt with in B.A. No. 6526 of 2019. The apprehension raised by the prosecution should be duly factored in and it is proposed to order that the petitioner shall not visit or enter into the territorial limits of the Police Station within whose limits the lady victim is residing or studying until the conclusion of trial process, subject to certain exceptions that would be dealt with hereinafter. 11. Accordingly it is ordered that the petitioner shall be released on bail on his executing bond for Rs.40,000/- and on his furnishing two solvent sureties for the like sum, both to the satisfaction of the competent court below concerned. However the grant of bail will be subject to the following conditions:- - _i. The applicant shall appear before the Investigating Officer (I.O.) on every 2[nd] and 4[th] Saturdays, at any time between 9 am and 1 pm, for a further period of 4 months or within such time limit that may be extended by the I.O. as he deems fit and proper._ - _ii. He shall not intimidate or attempt to influence the victim, witnesses; nor shall he tamper with the evidence._ - _iii. He shall not commit any offence while on bail._ - _iv. The petitioner shall not go anywhere near to the residence or educational institution of the lady victim._ - _v. The petitioner shall not enter into or reside within the territorial limits_ B.A. Nos. 6526 & 6504 of 2019 **==> picture [24 x 7] intentionally omitted <==** _of the Police Station where the lady victim is residing until the conclusion of trial, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the Court in relation to this case or any other cases or for contacting his lawyers/advocates concerned._ _vi. However if on account of any emergent personal need the petitioner wants to visit the said area, he may do so but only with the prior permission of the Investigating Officer concerned._ If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned shall stand hereby empowered to consider the plea for cancellation of bail if required, and pass appropriate orders in accordance with law. With these observations and directions, the above Bail Application will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG