Kerala High Court
Didheesh vs State Of Kerala on 20 April, 2013
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
MONDAY, THE 20TH DAY OF MAY 2013/30TH VAISAKHA 1935
Bail Appl..No. 2857 of 2013 ()
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CRIME NO. 81/2013 OF PIRAVAM POLICE STATION, ERNAKULAM DISTRICT
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PETITIONER/ACCUSED NO.1 :
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DIDHEESH,
S/O.THANKACHAN, AGED 28 YEARS
MALIYIL HOUSE, AIMURY P.O.
PERUMBAVOOR.
BY SENIOR ADVOCATE SRI.GRASHIOUS KURIAKOSE
BY ADV. SRI.GEORGE MATHEWS
RESPONDENT/COMPLAINANT :
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STATE OF KERALA
CIRCLE INSPECTOR OF POLICE, PIRAVAM POLICE STATION
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. V.S. SREEJITH
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20-05-2013,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Mn
P.BHAVADASAN, J.
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B.A. No. 2857 of 2013
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Dated this the 20th day of April, 2013
O R D E R
The petitioner is the first accused in Crime No. 81 of 2013 of Piravam Police Station who is alleged to have committed offences punishable under Sections 376 and 420 IPC along with three other accused persons. Among them, accused Nos. 2 to 4 have already been granted anticipatory bail by this Court.
2. The allegation against the petitioner is that he having promised the victim to marry her had sexual intercourse with her against her will and consent. He also managed to obtain gold ornaments and cash from her under the same pretext. Later on he and the members of his family retracted from the promise.
3. The petitioner would say that he is innocent and has been falsely implicated with ulterior motive. It is pointed out by him that if at all there was any physical B.A. No. 2857/2013 -2- relationship between the victim and the petitioner, it was with the consent of the victim as it could be seen from the complaint itself and other statement made by the victim. It is also brought to the notice of this Court by the petitioner that there is substantial difference between the version given in the complaint lodged by the father of the victim and the victim.
4. The learned Public Prosecutor very vehemently opposed the petition. It is pointed out by him that having lured the victim to have sexual intercourse with him on the promise of marriage and thereafter having gone back on his promise, the offence under Section 376 is attracted. It is also pointed out that the investigation is at an infant stage and custodial interrogation of the petitioner may be necessary. The learned Public Prosecutor also pointed out that the potency test of the petitioner is also essential.
5. The CD was made available for perusal. The allegation appears to be that the petitioner who is the first B.A. No. 2857/2013 -3- accused gained acquaintance with the victim who is a widow with a child and that relationship became intimate culminating in physical relationship between the two. As per the allegation, they had physical contact on several occasions. It is also seen from the records that according to the victim, the relative of the petitioner had gone to the house of the victim and promised that the petitioner would marry the victim. That did not happen.
6. The history shown the medical records does not support the prosecution case much. It is also to be noticed that there is no specific assertion by the victim that she had either resisted or that she was forced to have sexual intercourse with the petitioner. Anyhow, these are all matters which are to be considered at a later stage and further a probe into these allegations are not necessary at this point of time.
7. The only apprehension expressed by the prosecution is that custodial interrogation may be necessary B.A. No. 2857/2013 -4- and so also the potency test.
8. The learned counsel appearing for the petitioner pointed out that he is willing to subject himself for potency test at any time the Investigating Officer wants him to do so.
9. After having considered the various aspects, it is felt that this is a fit case where extraordinary jurisdiction of this Court needs to be exercised in favour of the petitioner.
The petition is allowed as follows:
1) The petitioner shall surrender before the Investigating Officer on or before 29.05.2013, who after interrogation shall produce the petitioner before the JFCM Court concerned.
2) The JFCM court, if any custodial interrogation petition is filed by the Investigating Officer, shall consider the same on merits and pass appropriate orders thereon. After considering any petitions so filed, the petitioner shall be released on bail on executing a bond for Rs.25,000/- (Rupees Twenty B.A. No. 2857/2013 -5- Five thousand only) with two solvent sureties for the like sum each to the satisfaction of the JFCM Court concerned.
3) The JFCM court shall ensure the identity of the sureties and the veracity of the tax receipts, before granting bail.
4) The petitioner shall make himself available for potency test as an when required by the Investigating Officer.
5) The petitioner shall make himself available for interrogation as and when required by the Investigating Officer.
6) The petitioner shall produce his original passport before the court concerned. If he is not having any valid passport, he should file an affidavit regarding the same before the court.
7) The petitioner shall not tamper or attempt to tamper with the evidence and influence or try to B.A. No. 2857/2013 -6- influence the witnesses.
8) The petitioner shall not leave the State of Kerala.
9) If any of the conditions is violated, the bail granted shall stand cancelled and the court concerned, of being satisfied of the said fact, may take such proceedings as are available in law.
P.BHAVADASAN JUDGE ds