IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 Bail Appl..No. 3799 of 2008() ----------------------------- CRIME NO.244/08 OF ANCHAL POLICE STATION PETITIONERS/2ND ACCUSED:- ------------------------------------------ RIJU RESIDING AT RIJU MANDIRAM, POLIPPARA P.O., MUKKENNERI, KADAKKAL, KADAKKAL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT. BY ADV. SRI.K.BABU (VETTAKALAYIL) SRI.JOHNSON GOMEZ RESPONDENT: ------------- THE STATE OF KERAL REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, AT ERNAKULAM, THROUGH THE SUB INSPECTOR OF POLICE, ANCHAL POLICE STATION, KOLLAM DISTRICT. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------------------- B.A.No.3799 of 2008 ------------------------------------------- Dated this the 20th day of June, 2008 ORDER This petition is for anticipatory bail. 2. The alleged offences are under Sections 511 of 377, 323 and 324 read with Section 34 of IPC. 3. According to the prosecution, an attempt was made by the first accused to commit unnatural offence on the boy, aged 15 years, and since he resisted, the first accused and others assaulted him by using PVC pipes etc. He sustained injuries on his body. This happened in the school building where construction work was going on and the accused and the boy were sleeping. The petitioner is the second accused. He has allegedly beaten the boy. 4. Learned counsel for the petitioner submitted that an incident as alleged had not taken place. The petitioner and the other accused are falsely implicated in an offence under Section 377 IPC without any basis. According to the prosecution, the defacto complainant was working along with the petitioner and BA 3799/08 2 others in connection with the construction work in a school. They were sleeping together. In the midnight, the first accused found out that the boy was attempting to steel some money. When a hue and cry was made, the neighbours took the boy into custody and he was beaten up. Thereafter, the boy left the place and at the instance of his parents, a false case is fabricated against the petitioner, it is submitted. 5. Learned counsel for the petitioner pointed out that though the defacto complainant is stated to be a student of 8th standard, the incident happened in a partly constructed school building where workers were sleeping. The incident allegedly occurred at 12.30 in the midnight and a student has no business to be in the school building at that point of time, it is submitted. Actually, the defacto complainant was working with the petitioner and others and they were sleeping in the same building after the work. It is also pointed out that as per FIS an offence under Section 377 was completed and there was penetration. But, later the case was transferred to another police station and investigation was conducted and offence and the Section was altered to 511 of 377 IPC. Learned counsel for BA 3799/08 3 the petitioner also stated that the First Information Statement was given at 11 a.m. in the morning and it was given only under instructions from the defacto complainant's parents who had fabricated a false case against petitioner and others. It was also argued that it is highly improbable that anybody will send a 15 year old boy to purchase liquor in the night and anybody would sell it to him also. 6. This petition is opposed. Learned public prosecutor submitted that it is difficult to believe that a boy, aged 15 years, will concoct a story as stated in the First Information Statement. He has given all the details of the act constituting offence under Section 377 IPC. As per his statement, he was sent for getting liquor in the night and they consumed the liquor and compelled the boy also to have liquor. The incident happened in the midnight when all of them were sleeping together. It is also submitted that as per FIS itself the boy was sleeping in the building in connection with the construction work and the incident occurred on 8.4.2008 during holidays. 7. In the light of the submissions made on both sides, I have gone through the case diary. The child was taken to the BA 3799/08 4 hospital and a medical certificate is available in the case diary. But, the medical evidence consistent with the allegation made in the FIR in respect of offence under Section 377 IPC. The statement of the boy is seen to have been recorded subsequently and on going through the said statement of the boy and the report on a comparison of the same with the allegation in the complaint, I find that anticipatory bail can be granted to the petitioner. The petitioner being the second accused is not alleged to commit any unnatural offence also. In the result, the following order is passed : (1) The petitioner shall surrender before the Investigating officer within seven days from the date of this order and make himself available for interrogation. (2) In the event of arrest of the petitioner, the petitioner shall be produced before the Magistrate Court concerned in accordance with law. (3) On production of the petitioner before the Magistrate court, if any bail application is moved, the petitioner shall be released on bail on his executing bond for Rs.50,000/- with two BA 3799/08 5 solvent sureties each for the like sum to the satisfaction of the Magistrate court concerned on the following conditions: (i) The petitioner shall not leave the limits of the Anchal Police station within which the crime is registered except with the previous permission of the learned Magistrate concerned. (ii) The petitioner shall make himself available for interrogation as and when directed. (iii) The petitioner shall co-operate with the investigation. The petition is allowed. K.HEMA, JUDGE csl