Kerala High Court
Special Court For The Trial Of Offences ... vs By Advs on 20 September, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941
Bail Appl.No.6296 OF 2019
AGAINST THE ORDER IN CRMP 1622/2019 DATED 07-08-2019 OF THE
SPECIAL COURT FOR THE TRIAL OF OFFENCES AGAINST CHILDREN
(ADDITIONAL SESSIONS COURT-I), MANJERI
CRIME NO.125/2019 OF VALANCHERY POLICE STATION, MALAPPURAM
APPLICANT/ACCUSED NO.1:
SHAMSUDEEN
AGED 46 YEARS
S/O. MOHAMMED KUTTY, NADAKAVIL HOUSE,
THOZHUVANNUR POST, VALACHERY, MALAPPURAM DISTRICT,
PIN - 676557.
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/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682031.
2 ADDL. R2 ABDUL SALEEM @ SALEEM
(SOUGHT TO BE IMPLEADED)
R2 BY ADV. R.RANJITH (MANJERI)
SRI.AMJAD ALI, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
20.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.6296 of 2019
2
ALEXANDER THOMAS, J.
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B.A.No.6296 of 2019
===========================
Dated this the 20th day of September, 2019
ORDER
The petitioner herein has been arrayed as accused No.1 among the three accused in the instant Crime No.125/2019 of Valancherry Police Station, Malappuram, which has been registered for offences punishable under Secs.363 and 376 of the Indian Penal Code and under Secs.6 & 5(l) of the Protection of Children from Sexual Offences (POCSO) Act, 2012, on the basis of the FI Statement given by the minor victim girl aged 16 years on 03.05.2019 at 7.40 p.m., in respect of the alleged incidents which had happened for the period from 01.01.2016 to 24.04.2019.
2. The prosecution case in short is that the petitioner/accused aged, 46 years is the owner of the building, in which the minor victim girl and her parents are residing and that he is also a Municipal Councillor of the Municipality concerned and that using his freedom as the owner of the rented house, he used to frequently visit the residential house in which the B.A.No.6296 of 2019 3 minor victim girl resided and befriended her and had sexual intercourse with her during ten occasions and that the petitioner had assured the minor victim girl that he would marry her and that thereby the petitioner has committed the abovesaid offences. It appears that earlier, the minor victim girl was found missing from her house and a complaint "for person missing case" under Sec.57 of the Kerala Police Act, 2011 was registered at the instance of her father at the Valancherry Police Station, which led to the registration of Annexure.D Crime No.238/2018 of Valancherry Police Station on 24.07.2018 and later the minor victim girl reported before the Valancherry Police Station, along with her parents and her version was that she had gone away from her parental home, as her elder sister and the said sister's husband had scolded her, etc. The minor victim girl was also medically examined by the doctor in relation to Annexure-D crime and Annexure-F is the medical report dated 26.07.2018, in which it is the doctor has stated that there is no history of any sexual assault and that her hymen is intact, etc. Later, the minor victim girl has given the instant First Information Statement on 03.05.2019, which has led to the institution of the instant Crime No.125/2019 of Valancherry Police Station on 03.05.2019. In the said FI Statement dated 03.05.2019, the minor victim B.A.No.6296 of 2019 4 girl has stated that she has been residing along with her parents in the residential building owned by the petitioner/accused and that he befriended with her and had sexual intercourse with her on various occasions and further that she was taken by the petitioner's driver (accused No.2) to the house of one of the relatives of the petitioner on 24.07.2018. Further that the petitioner used to come to her residence till 24.04.2019 and that the petitioner had threatened her that he would take steps to falsely implicate her and her parents, if she divulge this truth and that the petitioner had instigated her to give a false complaint that her elder sister and the said elder sister's husband used to scold her frequently unnecessarily and that the elder sister's husband used to harass her by touching her body, etc.
3. The learned Public Prosecutor would point out that pursuant to the registration of the instant Crime No.125/2019 of Valancherry Police Station on 03.05.2019, the minor victim girl was medically examined by the competent doctor concerned, who was given a medical report on 03.05.2019. The Prosecutor has made available a copy of the said report dated 03.05.2019 given by the doctor regarding the medical examination of the minor victim girl, wherein the doctor has clearly certified that there is B.A.No.6296 of 2019 5 evidence of past penetration of vagina, which is consistent with the physical examination and that the minor victim girl's hymen has been completely torn. But that there is no evidence of recent vaginal penetration.
4. The learned counsel for the petitioner/accused would point out that the minor victim girl herself has given her version before the doctor, which has been recorded in the medical report dated 03.05.2019 in relation to this crime that the last incident of sexual intercourse, allegedly committed by the petitioner was in May, 2018. That Annexure-F medical report dated 26.07.2018 (which was taken in relation to Annexure-D crime in relation to the person missing case) would clearly show that there is no history of any sexual assault and that her hymen is intact as on that date (24.07.2018) and if that be so, the said Annexure-F certificate would clearly exonerate the petitioner, in as much as the specific case of the minor victim girl is that the last sexual intercourse she had with the petitioner was in May, 2018 and that Annexure-F medical certificate dated 26.07.2018 would clearly disprove the possibility of sexual intercourse till 26.07.2018.
5. Per contra, the learned Public Prosecutor would point out that the minor victim girl has clearly stated in the instant FI Statement given on 03.05.2019 that the petitioner had sexual intercourse with her on various B.A.No.6296 of 2019 6 occasions and that the last occasion was on which he had come to her residence was on 24.04.2019. Further, the learned Prosecutor would point out that in Sec.164 Cr.P.C statement given by the minor victim girl in this crime, she has clearly stated that the petitioner had sexual intercourse with her at least on ten different occasions and that merely because the doctor has recorded in the medical report dated 03.05.2019 that the victim has told the doctor that the last sexual intercourse was in May, 2018, will not lead to the situation that the allegations of rape as made out by her in her FI Statement dated 03.05 2019 and in her subsequent Sec.164 Cr.P.C statement are false or wrong. The learned Prosecutor would point out that the investigation would clearly show that the girl has suffered penetrative sexual assault at the hands of the petitioner at least on ten different occasions and the implication of her version in the FIS and in the Sec.164 Cr.P.C statement is that the last occasion in that regard is on 24th April, 2019. Further that what is more relevant in this case is the medical report dated 03.05.2019, which would clearly show that the minor victim girl has been subjected to pass penetrative sexual assault, which is consistent with the physical examination made by the doctor and that her hymen has been completely torn. The learned Prosecutor would thus urge B.A.No.6296 of 2019 7 that these circumstances would clearly show that the girl has been subjected to sexual intercourse with the petitioner till about the end/third week of April, 2019 and the medical report dated 03.05.2019 would corroborate that version. Further the learned Prosecutor would point out that since the matter is pending, it may not be right and proper for this Court to assess minutely on these aspects, to determine as to whether the allegations of rape are completely false or incorrect and these are matters, which would require in-depth investigation, which alone would point out the real state of affairs and at this stage the matter requires in-depth investigation, and so it is not right and proper for this Court to make any judicial evaluation regarding the correctness or otherwise the allegations of rape and that the custodial interrogation of the petitioner is imperative for the smooth and effective conduct of the investigation further.
6. The learned Public Prosecutor would point out that the petitioner had not co-operated with the Investigating Officer in the interrogation process and he had gone abroad and his anticipatory bail application has been twice rejected by the Sessions Court concerned and that this Court had also earlier rejected his anticipatory bail application, as he was abroad and that he has returned back only recently to the country B.A.No.6296 of 2019 8 and there is also strong possibility of the petitioner absconding or not making himself available for the interrogation process, etc.
7. The learned counsel for the lady de facto complainant has also been heard, who has also opposed the plea for anticipatory bail and has pointed out that the minor victim girl and her parents have been frequently threatened and intimidated by the petitioner and further that they are living in the house owned by the petitioner and that the petitioner is an influential person in the locality, as he is the Municipal Councillor of the municipality concerned and that it may not be right and proper for this Court to short circuit the investigation process at this stage by granting anticipatory bail, which would be detrimental to the outcome of the investigation process.
8. After hearing both sides, this Court is of the considered view that Annexure-F medical report dated 26.07.2018 (which is in relation to Annexure-D "person missing crime"), cannot be the main basis for this Court to determine as to whether the allegations of rape are false or true. The girl has stated in her FI Statement in this case as well as in her subsequent Sec.164 Cr.P.C statement that she has been subjected to sexual intercourse by the petitioner at least on ten occasions. The minor victim B.A.No.6296 of 2019 9 girl has also clearly stated in her FI Statement that the last occasion, when the petitioner has resided the house was on 24.04.2019. The medical report dated 03.05.2019 in relation to this crime would clearly show that the minor victim girl has been subjected to past vaginal penetration and that her hymen is seen completely torn. Therefore, the matter requires in-depth investigation and it will really hazardous on this Court to take the view that merely because the doctor has stated in the medical report dated 03.05.2019 that the victim girl had told the doctor that the last intercourse was in May, 2018, should be the basis to evaluate the correctness or otherwise of the allegations in this crime. The allegations are very serious and grave, which pertain to penetrative sexual assault/rape on a minor victim girl, who is hardly aged 16 years and who happens to be living in her residential building which is owned by the petitioner. The learned Prosecutor's submission that the petitioner is an influential person in the locality and that his past conduct in influencing and intimidating the minor victim girl and her family members, as he is the owner of the house, in which they are residing and that he is a member of the Municipal Council, etc. and that therefore, there is a strong possibility of the petitioner intimidating and influencing the witnesses, more particularly, the minor B.A.No.6296 of 2019 10 victim girl and her family members, etc. cannot be simply brushed aside by this Court. As of now, this Court is not in a position to overrule the considered stand of the Investigating Officer that the custodial interrogation of the petitioner is really imperative for effectuating the smooth and fair conduct of the investigation of this crime.
Accordingly, the application fails and the same will stand dismissed.
Sd/-
ALEXANDER THOMAS JUDGE vgd/23.09.19