Kerala High Court
Shamsudheen vs State Of Kerla on 5 April, 2019
Equivalent citations: AIRONLINE 2019 KER 944
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 5TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941
BAIL APPL.NO. 8287 OF 2018
AGAINST THE ORDER/JUDGMENT IN CRMC 2308/2018 OF DISTRICT COURT &
SESSIONS COURT, ERNAKULAM
CRIME NO. 2078/2018 OF PALLURUTHY POLICE STATION , ERNAKULAM
PETITIONER:
SHAMSUDHEEN,AGED 50 YEARS,
S/O ABDULLA, HAMADANIYA GARDEN,
KADABHAGAM,PALLURUTHI-682 006.
BY ADVS.
SRI.V.JOHN SEBASTIAN RALPH,
SMT.P.V.DENCY, SRI.V.JOHN THOMAS,
SRI.K.J.JOSEPH (ERNAKULAM)
RESPONDENTS:
1 STATE OF KERLA,
REP THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,COCHIN-682 031.
2 HAFSATH, AGED 33 YEARS,
W/O SHAJAHAN,PADINJHARE CHENNALIYIL HOUSE,
NADUVATH NAGAR P.O.CHERTHALA,ALAPPUZHA 688 524.
3 SHAJAHAN, AGED 33 YEARS,
S/O HUSSAN,PADINJHARE CHENNALIYIL HOUSE,
NADUVATH NAGAR P.O.CHERTHALA,ALAPPUZHA-688 524.
SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR FOR R1,
SRI.L.P.ARAVINDAKSHAN FOR R2 AND R3
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ALEXANDER THOMAS, J.
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B.A. No. 8287 of 2018
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Dated this the 5th day of April, 2019
ORDER
The petitioner is the sole accused in Anx.2 Crime No.2078/2018 of Palluruthy Kasaba Police Station, registered for offences under Sections 376, 354 of the IPC and Sections 5(n), 6, 7, 8 of the POCSO Act.
2. The brief of the allegations in the above crime is that the petitioner accused aged 50 years is a close relative of the minor victim girl aged 9 years and that with the intention to satisfy his lustful sexual desires by committing sexual assault, some day prior to 28.10.2018, the petitioner accused had gone to the residence of the minor victim girl aged 9 years at Palluruthy and in the upstair portion of the said residential building, he had sexually abused the minor victim girl and had pressed the chest of the minor girl and had introduced his genitals into her private parts, etc. It appears that the minor victim girl was taken initially by the 2nd and 3rd respondent who are her parents to the Poochakal Police Station and the FIS to Poochakal Police Station was given on 15.11.2018 and the Crime was registered thereon on the same B.A. No. 8287 / 2018 ..3..
day and later the case was transferred to Palluruthy Kasaba Police Station,as the alleged incidents came within the territorial limits of Palluruthy Kasaba Police Station and thus Anx.2 FIR in Crime No.2078/2018 of Palluruthy Kasaba Police Station, has been registered on 16.11.2018.
3. On the same day (15.11.2018), the 2 nd respondent (mother of the minor victim girl) had by herself given yet another FIS before the Poochakal Police Station on 15.11.2018, alleging that she was constantly subjected to rape by the petitioner, etc. The said crime so registered by the Poochakal Police Station on 15.11.2018 was also transferred to the Thoppumpady Police Station, whereby Anx.1 FIR in Crime No.1642/2018 was registered by the said Thoppumpady Police Station on 16.11.2018 by arraying the petitioner herein as an accused for offences punishable under Sec.354, 376, 506, 323 of the IPC. The alleged incidents in respect of Anx.1 crime are set to have occurred between 24.9.2014 and 30.9.2016.
4. Now the 2nd and 3rd respondents have filed separate affidavits as per Anxs. 4 and 5 stating that the earlier allegations as reflected in Anxs. 1 and 2 FIRs were given on the basis of misunderstandings and that they have fully settled the disputes B.A. No. 8287 / 2018 ..4..
between the petitioner accused and that they are not interested to prosecute the matter any further, etc. This Court need not in any manner consider the correctness or otherwise of Anxs. 4 and 5 affidavits, more particularly at this stage of consideration of Anticipatory Bail Application of the accused.
5. The present application is confined to the plea for Anticipatory Bail in respect of Anx.2 Crime No.2078/2018 of Palluruthy Kasaba Police Station. It is to be noted that in the FIS given by the minor victim girl in the instant crime, she has stated that the petitioner had introduced his genitals into her private parts and she had felt pain, etc on the day in question.
6. Based on the submissions made on both sides, this Court had earlier requested the learned Prosecutor to get instructions as to whether the allegations in the FIS has been reiterated by the minor victim girl in the Sec.164 CrPC Statement given subsequently by her before the learned Magistrate in the instant crime. The learned Prosecutor after perusal of the Sec.164 CrPC Statement given by the minor victim girl in the instant crime would state that, the said statement made explicitly in the instant FIS that the accused had introduced his genitals into the private parts of the minor victim girl, is not seen stated by her in the B.A. No. 8287 / 2018 ..5..
Sec.164 CrPC Statement given by her before the learned Magistrate, but she has stated therein that she had felt pain in her private parts, etc.
7. The learned counsel appearing for the petitioner would point out that now it has been understood that the Police after completing the investigation in respect to the other crime (Crime No.1642/2018 of Thoppumpady Police Station as per Anx.1) has now been convinced that the allegations are cooked up and false and that they are in the process of filing the refer report. Further it is pointed out by the petitioner's counsel that in the abovesaid the two separate FIS, one by the mother and the other by the minor victim girl has been given on the same day and the former given by the mother are in relation to alleged incidents which have taken place between 24.9.2014 and 30.9.2016 and the instant FIS given by the minor victim girl are in relation to alleged incidents which have taken place prior to 28.10.2018. It is pointed out that the delay in registering the above crimes and the simultaneous reporting of the crimes one by the mother and one by the minor victim girl, would raise serious suspicions about the very credibility and the purity of the origin of the allegations in the crime. Further that the applicant and the mother of the child were earlier having B.A. No. 8287 / 2018 ..6..
an intimate relationship and that now she has made up with her husband (R-3). Further more particularly, it is pointed out by the petitioner that the strong allegation made by the minor victim girl in the FIS of the instant crime that the accused had introduced his genitals into her private parts, etc is conspicuously absent and missing in her own Sec.165 statement given in respect of the very same crime as recorded by the learned Magistrate and that this would clearly throw the light that the allegations are all falsely foisted and fabricated and that it is in the light of the these cumulative facts and attendant circumstances, this Court may also evaluate their conduct in voluntarily giving Anxs. 4 and 5 affidavits stating that the allegations were made only out of misunderstandings and that they are no longer interested to prosecute the abovesaid matter, etc.
8. After hearing both sides, this Court is of the considered opinion that in view of the strong suspicious circumstances in the abovesaid criminal proceedings, there may not be any necessity for the custodial interrogation of the petitioner. This Court will not venture to make any further observations, as the impugned criminal proceedings are pending. Accordingly the following directions and orders are passed:-
B.A. No. 8287 / 2018
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i. The petitioner will immediately personally appear before the Investigating Officer in relation to Crime No.2078/2018 of Palluruthy Kasaba Police Station for interrogation purposes at 10.15 am on any day on or before 16.4.2019 ii. The petitioner shall fully co-operate with the investigation.
iii. In case the Investigating Officer finds that it is necessary to conduct potency test, such action may also be considered. iv. If the abovesaid process is not over on the same day, it will be open to the Investigating Officer to direct the petitioner to appear before him on the next available working day or any other suitable day that may be found appropriate by the Investigating Officer.
v. After the interrogation process is over, in case the Investigating Officer arrests the petitioner in relation to Crime No.2078/2018 of Palluruthy Kasaba Police Station, then he shall be released on bail on his executing bond for Rs.40,000/- and on furnishing two solvent sureties for the like sum, each to the satisfaction of the Investigating Officer concerned. However in that eventuality, the grant of bail will be subject to following conditions:-
i. The petitioner shall not involve in any criminal offences of similar nature.
ii. The petitioner shall fully co-operate with the investigation. iii.The petitioner shall report before the investigating officer as and when required in that connection. iv. The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever.
If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned stands 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 MMG