Kerala High Court
Afran Amjad vs State Of Kerala on 29 March, 2023
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945
BAIL APPL. NO. 2351 OF 2023
[CRIME NO.79/2023 OF EDATHALA POLICE STATION]
PETITIONER/ACCUSED:
AFRAN AMJAD
AGED 21 YEARS
NEHA,THYCKAVU PURAYIDOM,AALISSERY WARD ,
ALAPPUZHA, PIN - 688012
BY ADVS.
C.A.ANOOP
R.KRISHNA
VANESHA VISWAMBARAN
RESPONDENTS/STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
2 STATION HOUSE OFFICER
EDATHALA POLICE STATION ERUMATHALA P.O., ALUVA, PIN -
683112
3 XXXXXXX
IS IMPLEADED AS ADDITIONAL R3 AS PER ORDER DATED 28-3-
23 IN CRL MA 01/2023
BY ADVS.
PUBLIC PROSECUTOR
K.R.PRATHISH
P.K.SREEVALSAKRISHNAN
OTHER PRESENT:
SRI..M.P.PRASANTH P.P
THIS BAIL APPLICATION HAVING COME UP FOR
ADMISSION ON 29.03.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
B.A.No.2351 of 2023
-:2:-
ORDER
Dated this the 29th day of March, 2023 This application is filed u/s 438 of the Code of Criminal Procedure seeking pre-arrest bail.
2. The applicant is the accused in Crime No.79/2023 of Edathala Police Station. The offences alleged are punishable under Sections 376, 376(2)(n) of IPC.
3. The prosecution case, in short, is that on 03.12.2022, the applicant took the victim in a car and had consensual sex after giving a false promise of marriage. Further, on 02.01.2023, he made the victim believe that he would buy her a pregnancy card and took her on his motorcycle, brought her to a flat near Al-Ameen College at 10 p.m., had a forcible sexual intercourse with her and thereby committed the offence.
4. I have heard the learned counsel for the applicant, the learned counsel for the victim and the learned Public Prosecutor. Perused the case diary.
5. The learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present case. The counsel further submitted that no materials B.A.No.2351 of 2023 -:3:- are on record to connect the applicant with the alleged crime; hence, he is entitled to get bail. The learned Public Prosecutor, on the other hand, submitted that the alleged incident occurred as a part of the intentional criminal acts of the applicant, and if he is released on bail at this stage, it will affect the course of the investigation.
6. I went through the FIS and connected documents. It would show that, the applicant and the victim were school mates and they were in love for the last so many years. Two incidents of sexual assault have been alleged, first one on 03.12.2022 and the second one on 02.01.2023. Admittedly, the sexual intercourse on 03.12.2022 was consensual in nature. The next sexual act was on 02.01.2023. According to the victim, she was taken to a lodge and the applicant had sexual intercourse with her against her will. The applicant has produced the copy of the WhatsApp chat between him and the victim from 23.12.2022 to 05.02.2023. There was no chat between 11.30 a.m. on 02.01.2023 and 9.45 a.m. on 04.01.2023. It probabilizes the case of the victim that, they were at the lodge in question from 10.00 p.m. of 02.01.2023 to 10.00 p.m. of 03.01.2023. However, the WhatsApp chat on the B.A.No.2351 of 2023 -:4:- next day, i.e., on 04.01.2023 and thereafter would clearly show that they had very close intimate relationship even thereafter. The said WhatsApp chat indicates that the victim doubted that she was pregnant out of their relationship. If actually, the case set up by the victim that she was subjected to rape by the applicant on 02.01.2023 night were true, there was absolutely no possibility of such intimate chats between her and the applicant on 04.01.2023. Considering the allegations levelled against the applicant, his custodial interrogation does not appear to be necessary. For these reasons, it is a fit case where pre-arrest bail can be granted to the applicant.
In the result, the application is allowed on the following conditions:-
(i) The applicant shall be released on bail in the event of his arrest on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the arresting officer/investigating officer, as the case may be.
(ii) The applicant shall fully cooperate with the investigation, including subjecting himself to the deemed police custody for discovery, if any, as and when demanded. B.A.No.2351 of 2023 -:5:-
(iii) The applicant shall appear before the investigating officer between 10.00 a.m. and 11.00 a.m. every Saturday until further orders. He shall also appear before the investigating officer as and when required.
(iv) The applicant shall not commit any offence of a like nature while on bail.
(v) The applicant shall not attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.
(vi) The applicant shall not leave the State of Kerala without the permission of the trial Court.
(vii) The application, if any, for deletion/modification of bail conditions or cancellation of bail on the grounds of violating the bail conditions shall be filed at the jurisdictional court.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE.
TR