Kerala High Court
Uchutty vs State Of Kerala on 19 December, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941
BAIL APPL.NO.9223 OF 2019
CRIME NO.528/2019 OF MUZHAKKUNNU POLICE STATION , KANNUR
PETITIONER/ACCUSED:
UCHUTTY, AGED 75 YEARS,
S/O.THOOPPER, NIZAR MANZIL, ALAYAD,
THILLANKERI.P.O., IRITTY TALUK,
KANNUR DISTRICT-670702.
BY ADV. SRI.RENJITH RAJAPPAN
RESPONDENT/STATE:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
SRI. SAIJI JACOB PALATTY, SENIOR PUBLIC PROSECUTOR.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
19.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ALEXANDER THOMAS, J.
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B.A. No. 9223 of 2019
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Dated this the 19th day of December, 2019
ORDER
The petitioner herein has been arrayed as the sole accused in the instant Crime No.528/2019 of Muzhakkunnu Police Station, Kannur, which was initially registered for offences punishable under Secs.354A(2) & 509 of the IPC and Secs.11(vi)(ii) & 12 of the POCSO Act, 2012. The crime has been registered on 15.11.2019 at about 1 am on the early morning hour of that day, pursuant to the FIS given by the minor victim girl aged 13 years on previous day (14.11.2019) at about 10.45 pm, in respect of the specific incident which happened on 13.11.2019 at about 4.30 pm, and certain other incidents which are said to have happened prior to that. The police after investigation has added the offences as per Sec.511 of 376 of the IPC (attempt to commit rape) and Sec.342 of the IPC. The petitioner has been arrested in this case on 15.11.2019 and after his remand, has been under detention since then.
2. The brief of the prosecution case is that, the minor victim girl aged 13 years used to walk to school along with her B.A. No. 9223 of 2019 ..3..
friends in front of the shop run by the petitioner accused aged 75 years, and earlier he used to show friendliness to the girl by offering her toffees and later on 13.11.2019 at about 4.30 pm, when the girl had come to his shop after her school hours, the petitioner had taken her inside the adjacent room to the shop and had closed the door, and had laid down on the floor and removed his clothes to expose his private parts to the girl and asked her to come near him, which she refused. Accordingly it is alleged that the petitioner has committed the abovesaid offences.
3. The counsel for the petitioner would point out that the petitioner is an elderly senior citizen aged 75 years who is suffering from various ailments and that the petitioner is a deaf and dumb person and his family is fully dependent on his shop business for the livelihood, and that the abovesaid allegations are false and baseless, and that even going by the admitted prosecution allegations, the police themselves were quite convinced that the offence as per Sec.511 of 376 of the IPC (attempt to commit rape) is not disclosed, and thereafter they have added the said offence only to give colour to the case, and further that at best the prosecution can make out a case of sexual assault as per Sec.7 of the B.A. No. 9223 of 2019 ..4..
POCSO Act. Further that taking into account the fact that he has already suffered detention in this case for the last 34 days, his further detention may not be necessary and this Court may order to release him on regular bail subject to any appropriate conditions.
4. The counsel for the petitioner has also placed reliance on the decisions of the Apex Court in Aman Kumar and Another v. State of Haryana [AIR 2004 SC 1497] wherein it has been held in paragraph No.11 thereof that, in order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect, etc The counsel for the petitioner would thus urge that, even going by the admitted B.A. No. 9223 of 2019 ..5..
prosecution allegations the offence as per Sec.511 of 376 of the IPC (attempt to commit rape) is not disclosed in this case, etc.
5. The learned Prosecutor has strongly opposed the plea for regular bail and has pointed out that the investigation is still going on, and the release of the petitioner at this stage may not be conducive for the better interest of the investigation.
6. After having heard both sides and after careful evaluation of the facts and circumstances of the case, and taking into account the fact that the petitioner is an elderly senior citizen aged 75 years who is suffering from various ailments and also the fact that the petitioner is a deaf and dumb person, and his family is fully dependent on his shop business for the livelihood, and also taking into account the nature of the allegations disclosed in this case, and also the fact that the petitioner has already suffered detention in this case for the last 34 days, this Court is inclined to take a humane approach and is thus inclined to hold that the continued incarceration of the petitioner may not be necessary, and that he could be released on regular bail, subject to stringent conditions.
7. Accordingly it is ordered that the petitioner shall be B.A. No. 9223 of 2019 ..6..
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 petitioner shall appear before the Investigating Officer (I.O.) on every 2nd and 4th Saturdays, at any time between 9 am and 1 pm, for the next 4 months, and thereafter he will report before the I.O., as and when directed.
ii. The petitioner shall not intimidate or attempt to influence the victim, witnesses; nor shall he tamper with the evidence.
iii. The petitioner shall not commit any offence while on bail.
iv. The petitioner shall not visit or go anywhere near to the residence or educational institution of the minor victim girl.
v. The Investigating Officer will ensure that a Police Constable preferably a Woman Police Constable (not in uniform) is deputed to the residence of the minor victim girl atleast once in a month for the next 4 months, to ascertain whether the victim girl has been in any manner subjected to any intimidation or influence by the petitioner or men at his instance.
vi. If anything adverse against the petitioner is brought to the notice of the Investigating Officer, then the I.O. will immediately conduct an enquiry and file report along with an application before the Special Court concerned, for cancellation of the bail granted to the petitioner hereby, whereupon the said Court stands hereby authorized to consider said plea and pass orders thereon, after hearing both sides and in accordance with law.B.A. No. 9223 of 2019
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If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned will 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