Kerala High Court
O.M.George vs State Of Kerala on 7 June, 2019
Equivalent citations: AIRONLINE 2019 KER 120
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941
CRL.A.No. 431 of 2019
AGAINST THE ORDER/JUDGMENT IN CRMC 175/2019 of SPECIAL COURT
UNDER POCSO ACT, WAYANAD DATED 15-03-2019
CRIME NO. 118/2019 OF S.Battery Police Station , Wayanad
APPELLANT/S:
O.M.GEORGE, AGED 71 YEARS
S/O.MATHAI, OOLAPPURAKKAL VEEDU, KUPPADI.P.O,
KUPPADI AMSOM, SULTHANBATHERY.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SMT.MANJU E.R.
SRI.E.VIJIN KARTHIK
SRI.M.SUNILKUMAR
SRI.R.ANIL
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.THOMAS SABU VADAKEKUT
RESPONDENT/S:
STATE OF KERALA, REPRESENTED BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA.
BY ADV. SMT.AMBIKA DEVI S, SPL.GP ATROCITIES
AGAINST WOMEN & CHILDREN
OTHER PRESENT:
SRI.P.N.SUMODU, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.06.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ALEXANDER THOMAS, J.
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Crl.Appeal No. 431 of 2019
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Dated this the 7th day of June, 2019
JUDGMENT
The appellant herein is the sole accused in Crime No. 118/2019 of Sulthanbathery Police Station, which has been registered for offences punishable under Sec. 376(2)(n) of I.P.C. and the Sec. 5(1) read with Sec. 6 of the POCSO Act and Sec.3(1)(W)(i)(ii), 3(2)(Va) of SC/ST (POA) Act Amendment, 2015.
2. The prosecution case in short is that the appellant accused has committed rape/aggravated penetrative sexual assault upon the minor victim girl aged 17 years, who was working as maid in his house and after knowing fully that she belongs to SC community (Paniya community) and that sexual intercourse was committed by him in the month of February, 2018 and thereafter on several occasions in the house of the accused and from many other places. The appellant has surrendered before the jurisdictional Magistrate's Court on 5.2.2019 and has been under judicial custody since then.
3. It is pointed out by the appellant's counsel that appellant's plea for regular bail has been declined on two occasions, the last of which was as per Anx.E order dated 15.3.2019 rendered by the Sessions Court, Wayanad, in Criminal Miscellaneous Case Crl.Appeal 431/19 - : 3 :-
No.175/2019. Aggrieved by the said Anx.E order dated 15.3.2019 rendered by the Sessions Court, Wayanad, denying him regular bail, the appellant has filed statutory appeal in terms of Sec. 14A of the SC/ST (Prevention of Atrocities) Act, 1987.
4. Heard Sri.V.B.Sujesh Menon, learned counsel appearing of rthe appellant and Sri.P.N.Sumodu, learned Prosecutor appearing for the respondent State.
5. The appellant would point out that he is now aged 71 years old and that he is a former president of the Sulthanbathery Grama Panchayat and a senior leader of the Congress party and that he had an impeccable records in his public life in Wayanad all through out and is also currently a member of the Board of Directors of the Sulthanbathery Co-operative Bank and that he has served as a member of the Sulthanbathery for 3 decades and that he has performed his duties as a public man with utmost integrity and honesty and this has created many political rivals and that the abovesaid allegations have been falsely foisted on him out of animosity of his rivals, etc.
6. It appears that the minor victim girl is a student of Plus One Humanities Course and is a maid/worker in the house of the Crl.Appeal 431/19 - : 4 :-
accused and the allegation is that she was raped by the accused on several occasions during the period spanning from year until 26.2.2019, etc The appellant's counsel would assert that the inherent improbability and falsity of the allegations is manifest from the crucial fact that the victim girl would even go the extent of alleging that she was last ravished by the accused on 26.1.2019, after she was asked to come to the accused's house, which she had forthwith obliged. That as per the case of the prosecution, the girl's father was made aware about the alleged sexual abuses even prior to 26.1.2019 and that if that be so, the allegation that she has voluntarily gone to the house of the accused even on 26.1.2019, on which day he had allegedly committed the sexual intercourse, etc. is unbelievable and lacks credibility, etc.
7. The learned Prosecutor has taken this Court's attention to various aspects of the prosecution materials and point out that the allegation of the prosecution has been maliciously motivated against the accused is untenable, etc.
8. One of the crucial contentions raised by the appellant's counsel is that the appellant is a 71 years old elderly senior citizen and that he is suffering from various serious ailments, details of which Crl.Appeal 431/19 - : 5 :-
are referred to in the impugned orders.
9. This Court had directed the learned Prosecutor to get instructions from the District Hospital, Wayanad, where the appellant was treated, about the nature of his ailments. The learned Prosecutor has made available a medical report dated 24.5.2019 of the Junior Consultant in General Surgery of that hospital, wherein it is stated that the patient is complaining of difficulty in voiding urine and lower abdominal pain, which was evaluated recently and urology consultation was done at Medical College, Kozhikode and he was diagnosed to have beginning of prostaic hyperpiesia and is being treated at Urology Department of the Medical College Hospital for the same and is on regular follow-up and that he is having bilateral scrotal swelling which was also evaluated and at present found to have no change from the previous status. That orthopedics consultation was done as he was complaining of bilateral knee pain and it is found to have osteoarthritis bilateral knee for which conservative management is advised by orthopedician and ophthalmology consultation was also done as the appellant was complaining of decreased vision and is having glaucoma on both eye and had undergone trabeculectomy of left eye and at present he is Crl.Appeal 431/19 - : 6 :-
having cataract with optic atrophy left eye and intra ocular pressure of his right eye was found to be normal, etc. The abovesaid report of the District Hospital Wayanad has been made available to this Court through the Superintendent of District jail, Mananthavady, where the appellant has been now detained.
10. Both sides have now brought to the notice of this Court's attention that the investigation has been completed in its entirety and the final report/charge sheet has also been filed by the investigating officer before the competent Sessions Court concerned on 24.3.2019 and the case is now pending on the file of the Sessions Court concerned. The appellant has been under judicial custody since 5.2.2019 for the last more four months.
11. The learned Prosecutor has opposed the plea for grant of regular bail and would also particularly urge that since the appellant is a person of political influence and since the minor victim girl was his own worker, there is possibility of the appellant influencing and intimating the witnesses including the minor victim girl and her family members.
12. Having regard to the fact that the appellant has been under judicial custody for the last 4 months and as the investigation Crl.Appeal 431/19 - : 7 :-
has already been completed in its entirety and as the final report/charge sheet has been filed and taking into consideration that fact that the appellant is an elderly senior citizen, suffering from various serious ailments which require constant medical monitoring, this Court is inclined to consider the plea for grant of regular bail. However, the apprehension raised by the learned Prosecutor about the likelihood of the appellant influencing and intimidating the witnesses, cannot be ruled out. The learned counsel for the appellant would submit that this Court may incorporate any stringent condition to ensure the integrity of the trial process and that the appellant would faithfully abide by any such conditions. The apprehension of the prosecution could be alleviated by directing that the appellant shall not enter into or reside anywhere in the territorial limits of the District (Waynad), where the minor victim girl is residing, until the conclusion of the trial, subject to permissible exceptions, which would be dealt with hereafter.
13. The learned counsel for the appellant would submit that the appellant would faithfully abide by that condition and that since he is requiring constant medical interventions by the hospitals in Kozhikode, especially Government Medical College, Hospital, Crl.Appeal 431/19 - : 8 :-
Kozhikode, the appellant would reside in Kozhikode district until the conclusion of the trial.
14. Accordingly, it is ordered that the the appellant shall be released on bail on his executing a bond for Rs.1,00,000/- (Rupees one lakh) with two solvent sureties for the like sum each to the satisfaction of the competent court below concerned.
The above order shall be subject to the following conditions:
(i). The appellant shall report before the SHO, within whose limits the appellant is going to reside, on every 2 nd and 4th Saturdays, at any time between 10 a.m. and 1 p.m., for the next three months. Thereafter, he will report before the said SHO, if so directed by the investigating officer in that regard. The SHO of the Police Station in whose jurisdiction, the appellant is gong to reside and before whom the appellant is going to report, should ensure that he will give timely reports to the investigating officer in relation to the instant Crime No.118/2019 of Sulthanbathery Police Station, as to whether the appellant has complied with the abovesaid condition in the matter of direction to report before the said SHO.
(ii) The appellant shall not in any manner contact or go near to the residence of the minor victim girl or the educational institution where the minor victim girl is studying, until the conclusion of the trial.
(iii). He shall not intimidate or attempt to influence the defacto complainant/victim, witnesses; nor shall he tamper with the evidence.
(iv). He shall not commit any similar offence while on bail.
(v) The appellant shall not enter into or reside anywhere within the territorial limits of the District (Wayanad) where the minor victim girl is residing until the conclusion of the trial, except for the limited purpose of reporting before the investigating officer, if so required by him in relation to any case or for attending to any court in relation to this case or any other cases or for contacting his lawyer or Advocate concerned. However, if the appellant has any emergent personal need to visit the area or the Sessions Court concerned, he may do so only with the prior permission of the investigating officer of this crime.
(vi) The investigating officer will send a woman Police constable (not in the uniform) once in a month to the residence of the minor victim girl to ascertain as to whether she or any other family members have been threatened or intimidated by the appellant or anyone else at his behest and if any thing Crl.Appeal 431/19 - : 9 :-
adverse is brought to the notice in that regard, he shall immediately take action, in accordance with law.
In case of violation of any of the above conditions, the jurisdictional Court concerned will stand hereby empowered to consider the application for cancellation of bail, if required, and pass appropriate orders in accordance with the law.
With these observations and directions, the above Crl. Appeal stands disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE sdk+ MMG Crl.Appeal 431/19 - : 10 :-
Crl.Appeal 431/19 - : 11 :-
Crl.Appeal 431/19 - : 12 :-
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A TRUE COPY OF THE DISABILITY CERTIFICATE
DATED 19/10/2004 OF DISTRICT DISABILITY
BOARD, WAYANAD DISTRICT HOSPITAL
ANNEXURE B TRUE COPY OF MEDICAL REPORT DTD
13/11/06 OF GLAUCOMA CLINIC, ARAVID EYE
HOSPITAL
ANNEXURE C TRUE COPY OF THE STATMENT OF FIRST
INFORMANT
ANNEXURE D TRUE COPY OF THE ORDER OF COURT OF
SESSIONS DATED 19/12/2018 IN
CRL.M.C.421/2018
ANNEXURE E CERTIFIED COPY OF THE ORDER OF SPECIAL
COURT FOR TRIAL OF OFFENCES UNDER POCSO
ACT AND CHILDREN'S COURT(ADDITIONAL
SESSIONS COURT-I), KALPETTA, WAYANAD
DATED 15/03/2019 IN CRL.M.C.175/2019.