IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 Bail Appl..No. 27 of 2009() -------------------------------------- (CRIME NO.499 OF 2008 OF PEROORKADA POLICE STATION) PETITIONER/ACCUSED: -------------------------------------- SUBHASH KUMAR, AGED 27 YEARS, S/O.DASAN, SUBHISH MANDIRAM, AYIROOR, ARUVIPURAM, PERUMKADAVILA VILLAGE. BY ADV. MR.BLAZE K.JOSE RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING SUB INSPECTOR OF POLICE, PEROORKADA POLICE STATION. BY PUBLIC PROSECUTOR MR. K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss K.HEMA, J. ----------------------------------------- B.A.No. 27 of 2009 ----------------------------------------- Dated this the 4th February, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offence is under Section 376 of the Indian Penal Code. According to prosecution, petitioner committed rape on de facto complainant in the first week of October, 2008 and when she developed stomach ache and vomiting, she was examined by the doctor and it was revealed that she was pregnant and therefore, a complaint was lodged on 17.12.2008. 3. Learned counsel for petitioner submitted that petitioner is not responsible for the alleged pregnancy. The definite case of de facto complainant is that rape was committed in the first week of October, 2008. She was studying for Plus-2 course and she was aged 17 years at the time of the commission of alleged offence. As per the medical report, she was examined on 17.12.2008 and the doctor opined that she is pregnant by “16 weeks”. So, going by the report, and allegations in the First Information Statement, petitioner cannot be made responsible for the pregnancy noted by the doctor. BA.27/09 2 It is also to be noted that as per the details of the history noted in the medical report, the sexual assault on complainant was by “uncle (mother's brother) in October first week”. But learned counsel for petitioner submitted that de facto complainant has no case in the First Information Statement that petitioner is her mother's brother or her uncle. On the other hand in Annexure A5 complaint he is described as a stranger who was harassing her. According to petitioner, de facto complainant and herself were in love with each other and Annexure-2 is the love letter written by her to petitioner. Petitioner and de facto complainant's family members were closely moving with each other and de facto complainant's mother owed a huge amount of money to petitioner. Annexure-3 is a promissory note issued to petitioner by her mother for Rs.50,000/- and it is dated 26.6.2007. Petitioner wanted the money back, but de facto complainant's mother was not willing and therefore, when petitioner was in dire need of money, he requested de facto complainant to help him, while she gave him her chain and it was pledged in the bank. Annexure-4 is a receipt issued for pledging the chain. De facto complainant wanted the chain back, but he explained to her that her mother BA.27/09 3 owed Rs.50,000/- to him etc. Because of these reasons, there was some strain in the relationship and at the instance of the mother, a false complaint is given against petitioner, it is submitted. At any rate, petitioner is not answerable to the alleged pregnancy and the case set up by de facto complainant that he had committed rape on her in October, 2008 cannot be accepted, it is submitted. Learned counsel for petitioner also submitted that Annexure-5 is a complaint given by de facto complainant's mother on 10.12.2008 just seven days prior to the lodging of the FIR in this case and in that complaint, no whisper is made about the allegations of rape. It was also pointed out that in Annexure-5 it is made to appear as if petitioner is total stranger to the girl and the family. As per the contents of Annexure-5, some stranger was going behind the de facto complainant and harassing her and on enquiry made by them, it was revealed that it s a person by name, “Subash from Neyyattinkara”. In such circumstances, petitioner prays that he may be granted anticipatory bail. 5. This petition is opposed. Learned Public Prosecutor submitted that on the allegations made, there is a case of rape. De facto complainant has given a statement in writing alleging a BA.27/09 4 case of rape by petitioner. However, he conceded that contains the details pointed out by learned counsel for petitioner regarding the details of assailant, period of pregnancy etc. 6. During the pendency of this petition, learned counsel for petitioner had submitted that if petitioner is responsible for the pregnancy, petitioner was willing to accept the girl and marry her, because they were in love with each other for quite a long period. He also submitted that he was prepared to undergo DNA test, if the court so directed. It was also pointed out that it is only because of the de facto complainant's mother's intervention, the relationship was broken. Petitioner expressed his willingness to marry the girl, in spite of the discrepancy pointed out in the medical report and learned counsel for petitioner even submitted that it is doubtful to petitioner whether the girl was pregnant as alleged by her since there was no cohabitation in October, 2008 and she could not have become pregnant. 7. In the peculiar facts and circumstances, this Court felt that it was better that the matter is settled between the parties, since it involved the life of a young girl, who is aged only 18 years and both parties agreed that the matter can be settled by the intervention of this Court. The parties were therefore directed to BA.27/09 5 appear before this Court and on their appearance, discussions were held. The girl reported that the pregnancy was aborted. 8. On going through the records and on hearing both sides, I am satisfied that petitioner has a strong defence to advance and in case anticipatory bail is refused, it is likely that he will suffer irreparable injury and loss. Therefore, I am inclined to grant anticipatory bail to petitioner in the peculiar facts and circumstances. Hence, the following order is passed: Petitioner is directed to surrender before the Magistrate Court concerned and he shall be released on bail on his executing a bond for Rs.25,000/- with two solvent sureties each for the like sum to the satisfaction of the Magistrate Court concerned, on the following conditions: i) Petitioner shall report before the investigating officer within three days from the date of release and make himself available for interrogation and co-operate with the investigation. ii) Petitioner shall not enter the limits of the police station within which the crime is registered, except for compliance of the condition in clause (i) above. BA.27/09 6 iii). Petitioner shall not tamper with evidence or influence the witnesses or intimidate them or commit any offence while on bail. Petition is allowed. K.HEMA, JUDGE vgs.