IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 Bail Appl..No. 6684 of 2008() ----------------------------- (CRIME NO.400/2008 OF MATTANNUR POLICE STATION) PETITIONER/ACCUSED NO.10 -------------------------------------------- C.P.RAJEESH, S/O.PADMANABHAN, AGED 31 YEARS,MADAYAN'S HOUSE, MORAZHA, BAKKALAM. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): COMPLAINANT -------------------------- 1. THE SUB INSPECTOR OF POLICE, MATTANNUR POLICE STATION. 2. THE CIRCLE INSPECTOR OF POLICE,MATTANNUR POLICE STATION. PUBLIC PROSECUTOR SRI. C.K.SURESH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 03/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. --------------------------------------------------- Bail Appl.No. 6684 of 2008 --------------------------------------------------- Dated this the 3rd day of November, 2008. ORDER Petition for bail. 2. The alleged offences are under Sections 354, 366(A), and 376(g) of the Indian Penal Code. 3. According to prosecution, a girl at the age of 12 years was raped by her own father under threat and it was repeated also. When the girl became 15 years, he started taking this girl outside and subjected her to flesh trade. Accordingly, petitioners and others committed rape on her on different dates in different rooms in a Resort at Parassanikkadavu. The girl divulged all these facts, under certain compelling circumstance to her mother and on a complaint made by the victim, a crime was registered. 4. Learned counsel for petitioner submitted that petitioner was arrested on 8.7.2008 and he is in custody for the [B.A.No.6684/08] 2 past four months. He is the 10th accused in the crime. The earlier application for bail was rejected by this Court. The gravity of offence appears to have weighed with the mind of the court in dismissing the petition, since first accused, who is none other than the father of the alleged victim, who is a minor, allegedly raped her and he had also supplied the girl to various other persons for sexual intercourse. But, the case of first accused and case of petitioner may not be treated equally, it is submitted. According to learned counsel for petitioner, both stand on different footing. Even if the allegations are accepted as a whole, it is a case where the victim was engaged in prostitution and the father had supplied her to several persons, it is submitted. But even as per entire the allegations, it cannot be inferred that petitioner had knowledge that victim was supplied by her father. Learned counsel for petitioner read out certain passages from the statement given by the girl under Section 164 Cr.P.C. in support of this argument. 5. It is also submitted by learned counsel for petitioner that as per the allegations, even two days prior to examination of girl by the doctor, she was raped but the wound certificate shows that there was no injury on her private part and this itself [B.A.No.6684/08] 3 indicates that there was no resistance from the part of the girl. A reading of the statement under Section 164 Cr.P.C. also will reveal that this is a case of sex with consent of the girl, who was subjected to prostitution by her father with her consent, it is submitted. 6. It is also pointed out that the name of petitioner was not mentioned in the statement under Section 164 Cr.P.C. given by the alleged victim. The description of petitioner also does not tally with what is stated herein. Petitioner was described as a person who was conducting a fancy store, but he has no fancy store. He was conducting only a cassette shop, it is submitted. Of course, the victim had identified the petitioner in the test identification parade but no value can be attached to such identification because the photograph of petitioner was shown to the girl and a petition was filed by petitioner before Magistrate court stating these facts, it is pointed out. 7. It is further submitted that petitioner has various reasons to go to the resort, it being run by his close relatives. It is attached to Parassanikkadvu temple. The mere presence of petitioner in the resort therefore will not be sufficient to connect the accused with the crime, it was submitted. There were some [B.A.No.6684/08] 4 factual mistakes in the facts stated by petitioner in the earlier application,which were inadvertent errors. It was stated at the time of hearing of earlier application that petitioner has no reason to go to the resort, since his family members are at loggerheads with the persons who are running the resort. The facts are actually the other way and it was only by an inadvertent mistake such statements were made by counsel who was appearing for petitioner at that time. 8. Petitioner will not influence or intimidate any witness or abscond. He is prepared not to enter Kannur district except for the trial and he is prepared to abide by any conditions, it is submitted. The commission of offence under Section 376 IPC on just one occasion may not be viewed so seriously to deny petitioner, his liberty until the trial is over, it is submitted. At least, petitioner may not be treated as equal to that of first accused, for purpose of bail, it is submitted. 9. This petition is strongly opposed. Learned Public Prosecutor submitted that the earlier application for bail by not only petitioner but by other accused were all dismissed by this Court with a direction to expedite trial. Accordingly, the case was committed by the Magistrate court to Sessions Court and the case [B.A.No.6684/08] 5 is numbered as S.C.No.682 of 2008. The case is now posted to next week (7.11.2008) for framing charge and the trail will be completed without any delay. The offence committed in this case is most heinous and petitioner will try to influence or intimidate witnesses and it will adversely affect the trial. There is ample evidence to connect the accused with the crime. It is also pointed out, unlike other cases of rape, it is not the version of the victim alone, but there is corroborative evidence of persons who had seen petitioner in the resort on the particular day. Other persons are also likely to be influenced or intimidated if petitioner is released on bail. Even if condition is imposed, once petitioner is at liberty, it will be possible for him to influence the witnesses. There is a lot of difference if a person is inside the jail and outside and if one is let free he will have all opportunity to destroy the evidence. 10. The victim being none other than the daughter of first accused, she will be in a most delicate position and she will be vulnerable to any exploitation. If she is influenced or intimidated and she is made to deviate from her version given under Section 164 Cr.P.C. it will result in great injustice not only to the victim alone but to the entire society as a whole, it is submitted. It is [B.A.No.6684/08] 6 also pointed out by learned Public Prosecutor that a reading of the statement of the victim under Sections164 Cr.P.C. as a whole will make it clear that sexual assault was been made on the girl against her consent and against her will. She has been a victim of circumstances under pressure of her father and a sentence or other, torn out of context cannot be used to hold that there was consent for sexual intercourse. 11. Even if the entire arguments of learned counsel for petitioner are accepted, even if the act committed by petitioner is with her consent, offence under Section 376 is clearly attracted in this case, since the child at the time of offence had not even completed age of 16 years, it is pointed out. The absence of resistance is not a relevant factor on the facts of this case, it is submitted. Even if petitioner was not aware that the girl was supplied by the father there is no justification in committing the offence against a girl who had not even attained the age of 16 years, it is submitted. The Sessions court has already taken all steps for expediting the trial and petitioner may not be released at this stage, it is submitted. 12. On hearing both sides, I find that there is every possibility of petitioner in influencing or intimidating the victim [B.A.No.6684/08] 7 and other witnesses, if he is released on bail. If under threat or influence, she deviates from truth, there will be no point in trying the case. If the witnesses are actually speaking falsehood before Investigators or the court, petitioner will have every opportunity to cross-examine them and establish such falsity. Learned Addl. Sessions Judge already posted the case for framing charge and it is only reasonable to infer that the case will be disposed of without delay. At this stage, therefore, I am not inclined to grant bail to petitioner in the larger interest of public. Petition is dismissed. K. HEMA, JUDGE. Krs.