Kerala High Court
Sudheesh vs State Of Kerala on 15 November, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 15TH DAY OF NOVEMBER 2019 / 24TH KARTHIKA, 1941
CRL.A.No.1260 OF 2019
AGAINST THE ORDER/JUDGMENT IN CRMC 2521/2019 DATED 26-10-2019 OF
DISTRICT COURT & SESSIONS COURT,TRIVANDRUM
CRIME NO.1554/2019 OF Attingal Police Station , Thiruvananthapuram
APPELLANT/ACCUSED:
SUDHEESH,
AGED 26 YEARS
S/O. SURENDRAN, VILAYIL VEEDU, MUDAPURAM,
CHIRAYINKEEZHU, THIRUVANANTHAPURAM.
BY ADV. SRI.M.R.SARIN
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI-682 031
2 THE DEPUTY SUPERINTENDENT OF POLICE,
OFFICE OF DEPUTY SUPERINTENDENT, ATTINGAL,
TRIVANDRUM, REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031
R1-2 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST
WOMEN & CHILDREN & WELFARE OF W & C
OTHER PRESENT:
SRI.C.M.KAMMAPPU, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
15.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1260 OF 2019 2
ALEXANDER THOMAS, J.
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Crl.A. No. 1260 of 2019
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Dated this the 15th day of November, 2019
JUDGMENT
Aggrieved by the impugned order dated 26.09.2019 rendered by the Sessions Court, Thiruvananthapuram in rejecting the regular bail plea, the appellant has now filed the instant Crl.Appeal under Sec.14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended.
2. The appellant has been arrayed as the sole accused in the instant Crime No.1544/2019 of Attingal Police Station. The said crime has been registered on the basis of the FI statement given by the lady defacto complainant on 30.09.2019 at about 6.00 p.m. in respect of the alleged incidents which happened about 2 months prior thereto. The appellant has been arrested in this case on 01.10.2019 and after his remand has been under detention for the last 45 days.
3. The brief of the prosecution case as disclosed in the above FI statement, is that the lady defacto complainant, aged 24 years belongs to scheduled caste and she is employed at Paps Organo Hypermarket, Attingal, where the appellant/accused aged 26 years is also employed there and that both of them became close to each other and developed an intense CRL.A.No.1260 OF 2019 3 love affair and that many a time, the appellant used to come near her whenever she goes to toilet and kissed and embraced her and that about 2 months prior to the submission of the FI statement dated 30.09.2019, when she had gone to the toilet, the appellant had come there and then had forcible sexual intercourse with her and the appellant assured her that he would marry her. Later, she came to know that she became pregnant and when she contacted the appellant, he lost his interest to pursue the marriage proposal and has abandoned her and she felt cheated and she has submitted the abovesaid complaint.
4. The learned counsel for the appellant would point out that the abovesaid allegations are false and baseless and further that the lady defacto complainant has not alleged anywhere in the FI statement that as a matter of fact, the appellant knew that she belongs to scheduled caste community and therefore, the invocation of offences as per the provisions of SC/ST (POA) Act cannot be pressed into service in this case. Further that, a close and intelligent reading of the abovesaid FIS would make it clear that if the incidents narrated therein are broadly true, the same could have happened only on the basis of consensual sexual relationship between the parties and not otherwise. Therefore, the vital ingredients of the offence of rape as per Sec.376 of the IPC are not brought out in this case. Further, the learned counsel appearing for the appellant has brought to the attention of this Court about various rulings of the Apex Court and various CRL.A.No.1260 OF 2019 4 High Courts including this Court which have dealt with the fine and substantial distinction between rape and consensual sexual relationship between the parties wherein it has been held that where a man and a woman continues to have an affair for quite a some time, then it may be difficult to make out a case of rape and further that, mere breach of promise to marry cannot be the main basis to contend that the consent of the woman was obtained on the basis of misconception of fact under Sec.90 of the IPC etc. Further, it is urged that since the appellant has already suffered detention for the last 45 days, his continued detention may not be necessary and this Court may order to release him on regular bail subject to conditions. It is also pointed that the prosecution has not been able to show any materials whereby medically it has been confirmed that the lady is pregnant etc. The learned Prosecutor has opposed the plea for regular bail and has pointed out that there is every possibility of the appellant intimidating or influencing the witnesses, more particularly, the lady defacto complainant, if he is let out on bail.
5. After hearing both sides and after careful evaluation of the facts and circumstances of this case, more particularly, testing the facts of this case, in the light of the judicial precedents which have laid down the fine and substantial distinction between rape and consensual sexual relationship between the parties and also taking into account of the crucial fact that the appellant has already suffered detention for the last 45 days, CRL.A.No.1260 OF 2019 5 this Court is inclined to take the view that the appellant has made out a strong probable case and his continued incarceration may not be necessary or warranted and he may be released on regular bail subject to stringent conditions. Further, in order to address the abovesaid serious apprehension raised by the prosecution, it is ordered as a safeguard that the appellant 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 investigation process in this case, subject to certain exceptions which should be dealt with hereinafter.
6. Accordingly, it is ordered that the appellant shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand only) and on furnishing two solvent sureties for the like sum, each to the satisfaction of the competent court below concerned.
7. However the grant of bail will be subject to the following conditions:-
i.The appellant shall appear before the Investigating Officer on every 2 nd and 4th Saturdays, at any time between 10 am and 1 pm, for a further period of 4 months or and thereafter he will report before the investigating officer as and when directed by the said officer. . ii. The appellant shall not intimidate or attempt to influence the lady victim, witnesses; nor shall he tamper with the evidence. iii. The appellant shall not commit any offence while on bail. iv. The appellant shall not reside or enter into the territorial limits of the police station where the lady victim is working or residing until the conclusion of investigation process, 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 lawyer/advocate concerned. However, if the appellant has any emergent need to visit the said area, he may do so, but only with the prior permission of the investigating officer concerned CRL.A.No.1260 OF 2019 6 If there is any violation of the abovesaid conditions by the appellant 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 crl.appeal will stand disposed of.
sd/-
ALEXANDER THOMAS, JUDGE SKS