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Kerala High Court

Xxx vs State Of Kerala on 30 July, 2021

Author: V Shircy

Bench: V Shircy

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MRS. JUSTICE SHIRCY V.
       FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
                       BAIL APPL. NO. 5251 OF 2021
    CRMC 922/2021 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM
    CRIME NO. 363 OF 2021 OF ERNAKULAM CENTRAL POLICE STATION
PETITIONER/ACCUSED NO. 1:

           XXX
           X

           BY ADVS.
           P.VIJAYA BHANU (SR.)
           E.VIJIN KARTHIK
           M.REVIKRISHNAN
           AJEESH K.SASI
           P.M.RAFIQ
           VIPIN NARAYAN
           POOJA PANKAJ
           SRUTHY N. BHAT



RESPONDENT/STATE:

           STATE OF KERALA
           REPRESENTED BY PUBLIC PROSECUTOR,

           HIGH COURT OF KERALA - 682 031.


OTHER PRESENT:

           C.N.PRABHAKARAN- SR.P.P




    THIS   BAIL    APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
28.07.2021, THE COURT ON 30.07.2021 DELIVERED THE FOLLOWING:
 B.A.5251/2021
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                                       ORDER

DATED THIS THE 30TH DAY OF JULY, 2021 The petitioner, who is undergoing incarceration from 10.06.2021 in connection with Crime No. 363 of 2021 of central police station Ernakulam has filed this application seeking his release on bail.

2. The petitioner and the defacto complainant were in a romantic and sexual relationship from the month of February, 2020 onwards. They were living together in a flat at Marine Drive. The defacto complainant is a Fashion Designer. While they were residing together, she was physically and mentally abused, tortured and brutally manhandled by the petitioner. He has also committed rape on her on various occasions and had taken her nude photographs and threatened that he would forward the same to her mother and other relatives and publish in social media. Though at the initial stage they were having a cordial relationship, B.A.5251/2021 3 gradually it turned as a horrible experience for the lady as she was subjected to sexual and physical torture. He had also borrowed an amount of Rs.5,00,000/- from her promising that the same would be returned to her on a monthly basis of Rs.40,000/-. But he failed to return the same as promised by him and thus she was also cheated by him. The petitioner kept her in wrongful confinement and beaten her with belt, broom etc and then subjected her to rape. He used to leave the flat after locking the room from outside. On 08.03.2021 when he had gone out to collect food which was ordered through Zomato, she escaped from the flat and later lodged the complaint against him. Even after the registration of the crime, he intimidated and threatened her from his hide-outs to withdraw the complaint lodged by her. This is the case of the prosecution in brief.

4. On the complaint Crime No. 363 of 2021 was registered against the petitioner on 08/04/2021 before the Ernakulam Central Police Station for the offences punishable under Sections 323, 324, 344, 376, 420 and 506 of Indian Penal Code. The B.A.5251/2021 4 petitioner was arrested on 10.06.2021 and since then he is in custody.

5. According to the learned Senior Counsel for the petitioner, the petitioner and the defacto complainant were in live-in relationship from the month of February, 2020 and she was living with him with her consent and the sexual relationship by him with the defacto complainant could only be consensual sex and cannot be construed as rape as alleged by the prosecution. So also, it is contended that the alleged injuries sustained by her are very minor in nature and the allegation that he had borrowed an amount of Rs.5,00,000/- from her is absolutely false and baseless. She was not having any money so as to part with the petitioner as alleged by her. In fact, he was providing financial assistance for all her needs believing her that she intends to marry him. Actually she was earlier married but that was not disclosed to him when they started to live together. She was not a Fashion Designer in the film field but was only working occasionally as an assistant to a Fashion Designer. He never assaulted B.A.5251/2021 5 the defacto complainant as alleged by her and she was also not sexually abused by him. She was in the habit of going out with several persons without intimating the petitioner and her indifferent attitude towards him, has turned their life miserable. To extort money from him he was falsely implicated in the case.

6. On the other hand, the learned Public Prosecutor vehemently opposed the bail application. The petitioner has sexually abused and brutally assaulted the defacto complainant and caused injuries by beating her with a belt, broom etc. He is also having criminal antecedents which includes offences under Narcotic Drugs and Psychotropic Substances Act. After registration of this complaint, the petitioner was absconding and after several days of search, the investigating agency could arrest him. Now the investigation of the case is only in progress. His gun, pen drive etc have to be recovered and the investigation of the case could be completed only if the investigating agency gets some more time. Hence the learned public prosecutor strongly oppose the grant of bail.

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7. Heard the learned counsel for the petitioner as well the learned Public Prosecutor. Perused the materials available on record.

8. Admittedly, the defacto complainant and the petitioner were in a romantic and sexual relationship at the beginning. They were residing in a flat at Marine Drive. The FIR was registered on 08.04.2021. As per the FIS she was wrongfully confined in the flat by this petitioner and she was physically assaulted and sexually abused by him from 15.02.2020 till 08.03.2021. On 08.03.2021, she managed to save her life from his clutches as she could get away from the flat when he had gone out to collect the food which he had ordered from hotel. On 08.03.2021, before registration of the complaint she was examined by a doctor attached to the General Hospital at 6.30 p.m. The injuries noted by the doctor are as follows:

"- Contusion over both buttocks.

- Contusion over lateral aspect of (R) thigh (L) leg.

- Contusion around (L) eye

- Contusion around(L) shoulder B.A.5251/2021 7

- Contusion and aberration over upper and lower back.

- Contusion over both upper limb posterior and anterior aspect

- 3 cm sutured wound over interior aspect of (L) wrist (Possibly suicide attempt)"

9. The case put forth by the defacto complainant is that she was physically tortured by the petitioner and he caused injuries on her by beating with a belt and broom. The injuries noted in the wound certificate would show that she had sustained injuries on her both buttocks, upper and lower back, upper and lower limb etc. FIS reveals that She was asked to stand naked on her knees before beating with belt and it caused injuries on her. Corresponding injuries are seen entered in the wound certificate issued by the doctor who examined her on 08.03.2021. Of course, she has given the FIS only on 08.04.2021. But at this stage there is nothing to doubt regarding the reason for the delay though she escaped from the flat on 08.03.2021. The learned Senior Counsel has submitted that as they B.A.5251/2021 8 were having a romantic and sexual relationship, the question of rape is not there and the essential ingredients or elements to attract an offence of rape are manifestly absent in the case. From the statement of the defacto complainant it appears that the romantic life between them was there only at the beginning stage of the relationship, later he tortured her and even inflicted injuries on her and had taken her nude photographs and videos and intimidated and threatened her that, he would transfer the same to her relatives including her mother and circulate it. So,also prima facie it is revealed that she was under wrongful confinement till she escaped from the flat to save her life. Even if the ingredients of rape are not there at the beginning of the relationship, subsequently she was tortured and he forced her to have sex with him after brutal attack in wrongful confinement. Therefore, the argument of the learned Senior Counsel for the petitioner that there are no ingredients to attract an offence of rape is without any merits at this stage. Whether the defacto complainant was raped B.A.5251/2021 9 without her consent and against her will after causing injuries on her are matters to be decided at the time of trial and now it cannot be held that there is no rape even after she sustained that much injuries from him. Of-course there is clear distinction between rape and consensual sex. But as she sustained the injuries noted in the wound certificate, sexual violence cannot be ruled out.

10. The petitioner has also a case that the allegation that he had borrowed an amount of Rs.5,00,000/- from her is not correct. But, prima facie, it could be seen that she has parted with the money when he promised to return the same on monthly payment of Rs.40,000/- which he failed to comply with. On going through the grievances projected by the defacto complainant in the FIS, it is explicitly clear that their romantic and sexual relationship was only for a few days of their live-in together relationship and thereafter her life has become miserable due to his mental and physical torture. It is also vehemently submitted by learned public prosecutor that even after the filing of the B.A.5251/2021 10 petition for pre-arrest bail, he had threatened and intimidated her through mobile phone to withdraw the complaint. At this stage, no circumstances exist to doubt the genuineness of the prosecution. Each case has to be considered in isolation as sexual violence of pervasive nature towards women by men happens in eccentric, strange and different manner in our society. The investigating agency has to collect all the materials to unearth the truth. If the petitioner is released on bail at this initial stage of investigation, there is every possibility to flee from justice and to intimidate the defacto complainant and the other witnesses to the prosecution and thus to tamper with the case. Moreover, he is having a bad criminal background as he is an accused in a case registered under the provisions of the NDPS Act. Apart from that, there is also an allegation that he has outraged the modesty of a woman and a case has been registered against him for the said offence and that too after this case. So, possibility to repeat similar offences also cannot be ruled out.

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                Therefore,       I      find     absolutely   no

      justification to       consider    this application by the

petitioner for his release on bail favorably at this stage, before completion of the investigation.

Dismissed.

Sd/-

SHIRCY V JUDGE sb