Kerala High Court
Johnson P.V vs State Of Kerala on 29 October, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941
Bail Appl..No.6758 OF 2019
CRIME NO.637/2019 OF Mala Police Station , Thrissur
PETITIONER:
JOHNSON P.V.,
AGED 56 YEARS
S/O. VAREED, PIDIYATH HOUSE, VALLACHIRA P.O.,
THRISSUR-680562.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
SRI.M.REVIKRISHNAN
SRI.V.C.SARATH
SRI.VIPIN NARAYAN
SRI.AJEESH K.SASI
SMT.POOJA PANKAJ
SRUTHY N. BHAT
RESPONDENT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031.
SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
29.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No.6758 OF 2019
2
ALEXANDER THOMAS, J
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BAIL APPLICATION NO. 6758/2019
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Dated this the 29th day of October, 2019
O R D E R
The petitioner herein has been arrayed as accused No. 11 in the subject crime No.637/2019 of Mala Police Station seeks anticipatory bail in relation to his involvement in the said case. The said crime No. 637/2019 of Mala Police Station has been registered for offences punishable under Sections 370, 376, 376D and 120B of the IPC on the basis of the First Information Statement given by the lady victim aged 18 years on 29/08/2019 at about 11 pm in respect of the alleged incidents which happened for the period from 01/12/2018 to 26/08/2019.
2. Sri. M. Revikrishnan, learned Advocate appearing for the petitioner would strongly urge that the petitioner is innocent of the allegations and that it appears that the lady victim has made various allegations of rape on various occasions during the conduct of the above said investigation and it appears that the investigation agency has not carried out the investigation in a proper and fair manner and has rather mechanically acted upon the assertions of the lady victim and that the petitioner is in no manner involved in the said crime and yet he has been Bail Appl..No.6758 OF 2019 3 arrayed as accused merely on account of the statement given by the lady victim that a person, bearing the same name of the petitioner had committed forcible sexual intercourse on her on an occasion.
3. Further that the petitioner would fully co-operate with the investigation process and that the custodial interrogation of the petitioner may not be necessary in this case and that this Court may exercise the discretion and may grant anticipatory bail to the petitioner subject to any stringent conditions and that the petitioner is prepared to abide by any conditions that may be appropriately stipulated by this Court in the grant of anticipatory bail.
4. Per contra the learned Prosecutor has seriously opposed the plea for anticipatory bail and has pointed out that the allegations in this case are very serious and grave. In view of the above said specific contentions raised by the petitioner that there are no reliable materials connecting the above said allegations in the instant crime, the Investigating Agency was directed to submit necessary instructions to the Prosecutor with reference to the case diary files so as to apprise this Court about the nature of the materials collected by the investigating agency so as to connect the petitioner with the allegations in the instant crime. Learned prosecutor now submits that a detailed statement dated 24/10/2019 has been filed by the investigating officer in this crime detailing out various Bail Appl..No.6758 OF 2019 4 aspects of the matter so as to effectively disclose the nature of the materials and allegations disclosed against the petitioner in the above said investigation.
5. The prosecution case is that A1 (One Chandra Mohan, aged 71 years) had befriended the lady victim aged 18 years through social media friendship, through facebook and whatsapp and he had conspired with A2 and A3 and brought the victim to a house at Chalakkudy in the month of January, 2019 and from there, they had taken her to the car of A1 and had enticed her to travel in the city. Later they have brought the victim to a Lodge room in Athani and after reaching there, A2 and A3 had gone out leaving the victim and A1 in the room. There, A1 had forcibly raped the victim. Thereafter in the month of February 2019, A2 and A3 had threatened her that the rape incident at Athani would be divulged to others and thus forced her to share her body with others. At that time, a 30 year old man had raped her again in the lodge and after this A2 had repeated the threat on the victim and conspired with A4 and A5 and brought her to the same lodge room. In the lodge room, A5 and the friend of A5 (Akhil and his friend) had raped her. Then again A2 and A3 had intimidated the victim and brought her to Holiday Park Hotel at Pudukkad on 17/02/2019and 24/02/2019, where the petitioner herein (A11) (J0hnson) had forcible sexual intercourse with her and thus raped the victim in room Bail Appl..No.6758 OF 2019 5 No. 107 and 104 of the said lodge. A5 (Akhil) had intimidated the victim and brought her to Poochakkulam in his Scooter, where he introduced her to A6 (Sushi) who runs a brothel at Poochakkulam. A6 then threatened the victim that he would divulge the photographs to the public domain and brought her to his rented house at Poochakkulam 4 times and 5 persons have raped the victim including A6 (Sushi). A7 (Sneha) had also assisted A6 in that regard. After that A8 (Sindhu) had got information from A15 (Biju) who raped the victim at Poochakkulam and intimidated the victim and had taken her to the rented house at Potta. There A12 (Vishnu) and A13 (Aneesh) had raped her. After that A10 (Seena) had threatened the victim and brought her to Cyclone lodge at Perinthalmanna on 27/08/2019 and there, two persons, A16 (Shamsheer) and A17 (Shafi) raped the victim. These aspects are stated in paragraph 6 of the above said statement filed by the IO.
6. In paragraph 7 thereof it is stated that the lady victim aged 18 years had undergone treatment from 28/08/2019 to 04/09/2019 at St. James Hospital, Chalakkudy after the incidents of rape reported above and she was treated by a psychiatrist at that hospital and the Doctor during the above said investigation has stated before the investigating agency that the victim has undergone treatment for EUPD (Emotionally Unstable Personality Disorder) and is in the border line. He has stated that those Bail Appl..No.6758 OF 2019 6 suffering from this illness will easily succumb to intimidation and enticement. Further that victim had undergone treatment at Amritha Hospital for Photosensitive Epilepsy and the Neurologist there had treated her at that hospital and the Psychologist of that hospital had given the victim counseling after the sexual harassment and assault which the victim has suffered. The said Psychologist has stated that the victim was traced with emotionally unstable personality traits and she had no mental illness. The mother of the victim has also stated that the victim has undergone treatment for epilepsy and that the victim had gone unconscious and fallen down many a times whenever she was questioned by her parents for her acts.
7. As regards the materials collected in the above said investigation disclosing the involvement of the petitioner herein (A11), the following aspects have been stated in paragraph 10 of the said statement filed by the IO which reads as follows:
"It is submitted that the victim had not stated about A11 Johnson in the Fi Statement dated 29/08/2019 and hence A11 was not included as Accused in the FIR. Thereafter, on 30/08/2019, the victim was questioned by me Sajin Sasi, Inspector - SHO, Mala through WSCPO 5461 Sheeba in which the victim had deposed that "അനുജ എനന (2 ആആ പ്രതത) ഭഭഷണതനപടതത ചചാലക്കുടതയതല് വരചാനചായത നതര്ബനതചച Bail Appl..No.6758 OF 2019 7 വരുതത നകചാടകരകച ബസതല് ഭര്തചാവച അനഭഷആ ആയത (മൂനചാആപ്രതത) നകചാണ്ടുപപചായത. നകചാടകര നതനആ അനുജകച പരതചയമുള ഒരു ഓപടചാറതക വതളതചച പതകചാടള പഹചാളതപഡ പചാര്കച എനച പപരുള പലചാഡ്ജതല് നകചാണ്ടുപപചായത. ഓപടചായതല് നവചച അനുജ ഓപടചാറതക ഡഡ്രൈവപറ ചനച എനചാണച പപരച വതളതചച പകടതച. അനച ഒരു ഞചായറചാഴ്ചയചായതരുന എനചാണച എനന്റെ ഓര്മ. അവതനട മുറതയതല് നവചച പജചാണ്സണ് എനച പപരുള തടതയുനട ബുസതനനസച നചയ്യുന ഒരചാള വനച എനന ബലചാല്സആഗആ നചയ. പലചാഡ്ജച നതന് നറ മചാപനജര്ക്കുആ പജചാണ്സനന പരതചയആ ഉളചതച നപചാനലയചാണച നപരുമചാറതയതച." "Thereafter, on 02/09/2019, Pradeep Kumar. P, Deputy Superintendent of Police DCRB Thrissur Rural had further questioned and recorded the statement of the victim through WSCPO 5461 Sheeba and she had deposed that on "30/08/2019 തഭയതത നലതയ നമചാഴത ശരതയചാനണനചആ കൂടചാനത ചന്ദ്രനുആ, ഗഭതചവആ അനഭഷചആ അഖതലആ ആല്വതനുആ സുഷതയുആ പസ്നേഹയുആ സതന്ധുവആ സഭനയുആ പജചാണ്സനുആ മറആ പചര്നച ഭഭഷണതനപടതത നകചാണ്ടു പപചായതച അവര്കച പണആ ഉണചാകചാന് പവണതയുആ ഡലആഗതകമചായത ചൂഷണആ നചയ്യുവചാന് പവണതയുആ ആണച." Further on the event of arrest of accused A2 and A3 they had confessed that the victim was seduced and took her to Johnson at Holiday Park Hotel at Pudukkad where Johnson had sexually and forcibly raped the victim. On 02/10/2019 the victim Bail Appl..No.6758 OF 2019 8 was again questioned and she had deposed th at "പജചാണ്സനു പവണത ഗഭത പചചതയുആ ഭര്തചാവച അനഭഷച പചടനുആ പചര്നച എനന 2 പ്രചാവശചശആ ഭഭഷണതനപടതത പതകചാടച പഹചാളതപഡ പചാര്കച പലചാഡ്ജതപലകച ആണച നകചാണ്ടു പപചായതട്ടുളതച. ഞചാന് അഴതഞചാടത നടക്കുന നപണചണു ആനണനച നചാടചകചാപരചാടആ ഓപടചാറതകകചാപരചാടആ പറയുനമനആ എനന്റെ പഫചാപടചാ ആളുകളകച കചാണതച നകചാടക്കുആ എനആ ഒനക പറഞചാണച എനന ഭഭഷണതനപടതചാറുല്ളതച . ഒരു പ്രചാവശചശആ ഞചാന് ചചാലക്കുടതയതല് വനപപചാള ഗഭത പചചതയുആ അനഭഷച പചടനുആ കൂടത നക എസച ആര് ടത സത ബുസതല് കയറത എനന പതകചാടച പലകച നകചാണ്ടുപപചാകആ വഴത നകചാടകര ഇറങതയപശഷആ ചന്തു എനയചാളുനട ഓപടചാറതകയതല് കയറതയചാണച പഹചാളതപഡ പചാര്കച പലചാഡ്ജതല് നകചാണ്ടുപപചായതച. ഓപടചാറതകയതല് ഇരുനച ഗഭത പചചത ഓപടചാ ഡഡ്രൈവനറ ചന്തു എനച വതളതക്കുനതച പകടചാണച അയചാളുനട പപരച ചന്തു എനചാനണനച ഞചാന് മനസതലചാകതയതച. ഓപടചായതല് ഇരതക്കുപമചാള ഗഭത പചചതനയ പജചാണ്സണ് പചടന് പഫചാണതല് വതളതച എവതനടനയതത എനച ഇടയതടയച പചചാദതക്കുനണചായതരുന. ഗഭത പചചത പഫചാണ് എടക്കുപമചാള പജചാണ്സണ് പചടന് എനച വതളതചച സആസചാരതക്കുനതച ഞചാന് പകടതരുന. അനഭഷച പചടന്നറ പപരതലചാണച നലചാട്ജതല് റആ എടതതച. എനന പഹചാളതപഡ പചാര്കച പലചാഡ്ജതനല പജചാണ്സണ് പചടന്നറ റമതല് ആകത ഗഭത പചചതയുആ പജചാണ്സണ് പചടനുആ പറത്തു നതല്ക്കുആ. രണചാമനത പ്രചാവശശആ Bail Appl..No.6758 OF 2019 9 നകഎസചആര്ടതസത ബസതല് അനഭഷച പചടനുആ ഗഭത പചചതയുആ കയറത പതകചാടച നകഎസചആര്ടതസത ബസച സചാന്ഡതല് ഇറകതയ പശഷആ ഞങള മൂനച പപരുആ നടനചാണച പഹചാളതപഡ പചാര്കച നലചാട്ജതല് എതതയതച . രണച ദതവസവആ രണ്ടു മുറതകളതല് നവചചാണച പജചാണ്സണ് പചടന് എനന ബലചാല്സആഗആ നചയ്തതതച . പഹചാളതപഡ പചാര്കച പലചാഡ്ജതനല 104 107 എനഭ മുറതകളതലചാണച പജചാണ്സണ് പചടന് എനന ബലചാല്സആഗആ നചയ്തതതച. മുറതകള എനതകച ഇനതയുആ കണചാല് തതരതചറതയചാആ. പലചാഡ്ജതനല ആളകചാര് എനന കണതട്ടുണച. 2019 നഫബ്രുവരത മചാസആ 17 ഉആ 24 ഉആ തഭയതതകളതല് ഉള ഞചായറചാഴ്ചകളതല് ആണച പതകചാടച എനന ഗഭത പചചതയുആ അനഭഷച നചടനുചആ 2 പ്രചാവശശവആ നകചാണച പപചായതട്ടുളതച. ചന്ദ്രന് പചടനുആ പജചാണ്സണ് പചടനുആ ഗഭത പചചതയുആ അനഭഷച പചടനുമചായത സആസചാരതക്കൂനചതച ഞചാന് കണതരുന. അതതനച അതതനച പശഷആ പജചാണ്സണ് പചടനന്റെ കചാറതലചാണച ഞങനള പതകചാടച ബുസച പസചാപതല് നകചാനച നചനച ആകതയതച . എനന ബലചാല്സആഗആ നചയചാന് നകചാണ്ടുപപചായ പതകചാടച പഹചാളതപഡ പചാര്കച പഹചാടലആ മുറതകളുആ ഞചാനചാണച ഇനച കചാണതചച നകചാടതതച." The staff at Holiday Park Hotel at Pudukkad, Mary receptionist and Manager Chandran was questioned and there Statements were recorded. The Auto Driver Chandu @ Rajesh was also questioned and the same revealed Bail Appl..No.6758 OF 2019 10 that A2 Geethu, A3 Aneesh and A11 Johnson was present at Holiday Park Hotel at Pudukkad. The Guest register, Invoice for the payment made for room rent, ID proof etc was seized and the same revealed that on 17/02/2019 room No. 107 was taken in the name of Aneesh A3 from 10.54 to 13.44 Pm and room No. 104 was taken on 24/02/2019 from 11.00 am to 13.49 pm. The verification of Invoice reveals that Rs. 2240/- was paid as rent. As part of the investigation the call details and tower location in respect of the mobile no. of victim 8078879841, Mobile No. of Johnson 9446997819, Mobile no. of A2 Geethu 9447848703 were verified for the period 17/02/2019 and 24/02/2019 and the verification had revealed that the mobile numbers were in use within the tower at Pudukkad Alagappanagar where the Hotel situates ."
8. Further it is stated in paragraph 11 thereof that on questioning the victim as well as the witnesses at Holiday Park, Pudukkad, the Auto Driver Chandu and on verification of the Call Data Records (CDR Particulars), the statement of A2 and A3, Hotel records, etc, it has now been disclosed that the petitioner herein (A11) with the assistance of A2 and A3 had forcibly committed sexual intercourse on the victim on 17/02/2019 and 24/02/2019. It is further stated by the Prosecutor on the basis of instructions of the investigating officer concerned that the Bail Appl..No.6758 OF 2019 11 custodial interrogation of the petitioner is really imperative and necessary for the further progress of investigation and that his arrest is highly necessary and that he has been identified by the victim and potency test had to be conducted etc. Further that the investigating agency has got reliable information that petitioner herein (A11) is a big business man and that if he is granted bail, there is every chance for intimidating and influencing the witnesses, more particularly the lady victim and that he is likely to destroy the evidences against him. Further that a number of other accused persons who are involved in this sensitive case who have trapped the innocent victim exploiting her illness are yet to be arrested and that if this Court grant anticipatory bail to the petitioner herein, it would detrimentally affect the further progress and outcome of the investigation process and the learned prosecutor would strongly urge that the plea of the petitioner for grant of anticipatory bail may be rejected.
9. After anxious consideration of the rival submissions made by both sides and after careful evaluation of the facts and circumstances of this case, this Court is not in a position as of now atleast for the consideration of the present anticipatory bail application, to countenance the above said contention raised by the petitioner that there are no materials whatsoever collected by the investigating agency so as to connect his involvement in the said crime or that his custodial interrogation is not Bail Appl..No.6758 OF 2019 12 necessary or that he should be granted anticipatory bail. As of now, this Court is not equipped with necessary objective materials nor are there any objective facts and attendant circumstances available with this Court so as to overrule the above said considered stand by the investigating officer that the custodial interrogation of the petitioner is highly necessary and imperative for the further progress of investigation of the case.
In the light of these aspects this application fails and the same will stand dismissed.
Sd/-
ALEXANDER THOMAS
Nsd JUDGE
//true copy//
PA to Judge