IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 Bail Appl..No. 263 of 2010() ---------------------------- (CRIME NO.202/2009 OF PULPALLY POLICE STATION, WAYANAD) PETITIONER/ACCUSED -------------------------------------- PRASANNA KUMAR, AGED 40 YEARS, SREE SADANM, PULPPALLY.P.O., WAYANAD DISTRICT. BY ADV. SRI.S.RAJEEV RESPONDENT(S): STATE -------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO. 202 OF 2009 OF PULPALLY POLICE STATION WAYANAD DISTRICT.) PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 26/07/2010, ALONG WITH BA NO. 1112 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J ----------------------- B.A Nos.263 AND 1112 OF 2010 -------------------------------- Dated this the 26th day of July 2010 ORDER This petition is for anticipatory bail. 2. The alleged offences are under Sections 341, 376, 506, 511 of 366 r/w 34 of IPC. According to prosecution, de facto complainant was working as a maid servant since 21/03/2007 in the house of petitioner. During the said period he used to make physical advances to her which she resisted. On 04/02/2008, in the morning, accused numbers 2 and 3 came to the house along with first accused and first accused asked her to prepare food for them. The first accused's wife was not present in the house at that time. While she was keeping the food on the dining table, first accused asked her to take the dresses from his room for washing. 3. When she went to the room for taking the laundry, two of the accused suddenly came to the room. The other accused was hiding himself behind the door. They locked the room from inside and all the accused made her lier on the bed by force. They tied her legs with a dothi to the cot, undressed her and thereafter, with the help of second and third accused, first accused committed rape on her. Thereafter, second accused B.A Nos.263 and 1112 OF 2010 2 also committed the same act on her. De facto complainant became very weak and accused left the room. After some time, first accused came to de facto complainant and threatened to kill her if she disclosed the incident to any person. An autorikshaw was called by first accused and she was sent to her house in the autorikshaw. She had injuries and pain on her private part. Hence, she used some herbs as medicine to relieve the pain. 4. Heard Sri. S.Rajeev, learned counsel for first accused and Sri.K.Ramakumar for the second and third accused. Learned Public Prosecutors were also heard. Learned counsel for the first accused submitted that the allegations made against first accused are absolutely baseless and false. According to him de facto complainant had a motive to falsely implicate first accused in the crime. First accused used to lose money from the house and in December 2008, he lost Rs.20,000/- from the house and he had some suspicion about de facto complainant because, de facto complainant was found having lot of money in her possession. 5. First accused would also content that when de facto complainant was questioned about the money, she was giving false excuses. He came to know that de facto complainant had entrusted Rs.12,000/- with one Gafoor, who was residing in the B.A Nos.263 and 1112 OF 2010 3 neighborhood and to several other persons also she had given money. Hence, first accused and his wife decided to send her out of the house. One Unni who had brought the girl to the house was called and she was asked to leave the house with him. But, on the very next day, on 05/02/2008, she called first accused over phone and told him that the she raised money not by theft but it was by indulging in immoral activities. She also insisted that she should be retained as maid servant in the house, failing which, she would commit suicide. Hence, first accused filed a complaint before the Circle Inspector of police, Pulpally and the copy is Annexure A1, it is submitted. 6. Pursuant to Annexure A1 complaint, both parties were called to the police station and de facto complainant was warned by police not to create any problem to first accused, it is submitted. These facts are revealed from Annexure A2 letter issued from the police station to first accused, when he was requested for details, under the Right to Information Act. After the said incident, de facto complainant filed a complaint before the Womens Commission on 29/02/2008. 7. Learned counsel for first accused also pointed out that de facto complainant had not made any allegation regarding the rape in the petition given to Womens Commission. She had not stated therein that first accused had, in any manner, sexually B.A Nos.263 and 1112 OF 2010 4 assaulted her. In the said petition, her only grievance was that first accused was harassing her by not paying her salary. Rs.26,400/- was alleged to be due to her as monthly salary for 12 months, but such amount was not paid. Though several details were stated in Annexure A3 complaint to the Womens Commission, there is not even a whisper that de facto complainant was raped by first accused, it is argued. No reference was made in the complaint to any incident which is now alleged against first accused, it is pointed out. She only stated that some “attempts” were made by first accused to physically abuse her, but, she resisted the same and hence, he was motivated to file a complaint against her etc. 8. It is also pointed out that as per the details furnished by Kerala Womens Commission, vide Annexure A4, the Womens Commission did not pass any final order in the matter. It is also submitted that the Dy.S.P had conducted a thorough investigation into the matter, as directed by the Womens Commission and de facto complainant and the related witnesses were thoroughly questioned by the Dy.S.P. But, nothing was revealed in such inquiry regarding the incident which is now alleged to have occurred in this case. 9. During the inquiry by Dy.S.P, de facto complainant did not raise any allegation of any sexual assault by first accused, it B.A Nos.263 and 1112 OF 2010 5 is pointed out. In Annexure A5, the statement given by de facto complainant to Dy.S.P which is a signed statement, she had retracted from her earlier statement made against first accused that he “misbehaved” etc. She explained that she happened to make such allegations against first accused only in the peculiar mental condition in which she was at that time, it is submitted by petitioner's counsel. 10. It is also pointed out that after about one year and seven months, a private complaint was filed by de facto complainant on 24/09/2009 before the Magistrate Court and it is in that complaint that she made the present allegations of rape for the first time. The private complaint was forwarded to the police and a crime was registered under Sections 341, 376, 506, 511 of 364 and 34 IPC. The crime was registered on 01/10/2009 and allegations of rape are made at a highly belated stage, it is submitted. The documents produced in this case will not only tally with the allegations made in the complaint but, those will also show that de facto complainant was deliberately making false allegations against first accused, it is strongly argued. 11. It is also submitted by first accused's counsel that on the date of alleged incident namely 04/02/2008, first accused's wife was present in the house, and she had gone for work, only very late in the morning. Annexure A9 is the attendance B.A Nos.263 and 1112 OF 2010 6 certificate issued by the District Labour Officer certifying that she attended office on 04/02/2008 only at 12 noon, as per the attendance register maintained in the office. It is also pointed out that first accused's daughter was also in the house on the said day since, holiday was declared in lieu of the annual day celebration which took place on 03/02/2008. There are documents to prove these facts, it is submitted. It is highly unlikely that when all these persons are present in the house, a heinous crime as alleged would occur in the manner alleged, it is argued. This case is falsely foisted against first accused only to wreak vengence, since he made a complaint against de facto complainant to the Circle Inspector of police on 05/02/2008 and she was sent out of job, it is submitted. The de facto complainant is an educated girl who studied upto 10th standard, he added. 12. Learned counsel for first accused also pointed out that there is a manipulation in the date and time of the incident. As per a report dated 07/10/2008 made by the investigating officer, the date and time of offence were 04/02/2007 at 9:30 A.M. Later, another report was filed stating that there was a mistake in the date and time and those were corrected as 04/02/2008 at 10:30 A.M. According to learned counsel for first accused, this was deliberately done, on knowing that the B.A Nos.263 and 1112 OF 2010 7 documents will establish that first accused's wife was present at the house during the time which was originally stated by de facto complainant and the entire case set up by de facto complainant will be belied by documentary evidence, it is argued. 13. Learned counsel for second and third accused argued that the second and third accused are totally innocent of the allegations made. A reference was made by learned counsel to a signed statement given by the alleged victim to the Dy.S.P and it is argued that it will be clear from the said document that the accused had not committed anything against her at any time. Annexure A4 produced by accused is a signed statement given by de facto complainant. A reading of the said statement will clearly reveal that the present allegations are absolutely false and were developed at a highly belated stage, and that accused numbers 2 and 3 are absolutely innocent, it is argued. The interrogation of second and third accused is not at all necessary and hence, anticipatory bail may be granted, it is submitted. No reliance can be placed on the case diary statements, he added. 14. This petition is strongly opposed. Learned Public Prosecutor submitted that the allegations made against petitioners are very serious in nature and the case diary reveals B.A Nos.263 and 1112 OF 2010 8 a deplorable state of affairs and the trauma which a helpless female member of a Scheduled Tribe has gone through at the hands of petitioners. De facto complainant hails from a financially and socially poor background and as per the allegations in the complaint, she was tied up to the cot and sexually assaulted by accused numbers 1 to 3 in the most heinous manner. First accused committed rape on her, while the others held her by force and the same act was repeated by second accused also. Medical records reveal that she was examined by the doctor on the allegations of rape and she had injuries on private part for which medicines were applied. 15. she had also undergone psychiatric treatment, since the incident had inflicted mental trauma on her. She was under treatment as an inpatient in the hospital for a considerable time and the incident has affected her mental balance also. The impact of the incident was severe. Medical records reveal that after the sexual assault on de facto complainant, she started behaving abnormally and she was treated by psychiatrist for the mental disturbance, it is submitted. It is explained by the doctors that the mental disturbance of de facto complainant could be as a result of the sexual assault made on the victim. The statement given by employees of the hospital including the doctor clearly reveal B.A Nos.263 and 1112 OF 2010 9 that de facto complainant was subjected to sexual assault which inflicted physical injuries on her. 16. Learned Public Prosecutor also submitted that the independent medical evidence are more than sufficient to rule out a case of false implication. The omissions made in the earlier statements given by the victim and the failure to mention about the incident to Womens Commission etc. are will explained by the tell-tale materials in the case diary, including medical records, it is submitted. 17. It is also argued that a reading of the private complaint itself will show that de facto complainant was referring to the time at which accused came to the house. But, the incident happened much later, after she cooked the food. It cannot be said that it was 9:30 A.M that the incident happened, even on a plain reading of the FIS. It was also pointed out that in FIS, she had specifically stated that first accused's wife was not present in the house when incident happened. 18. Regarding the date of occurrence, there could only be a typographical error, which will be evident from a reading of the complaint as a whole. The investigating officer had filed a report after questioning de facto complainant and it is stated that instead of 04/02/2008, it was recorded as 04/02/2007 in the B.A Nos.263 and 1112 OF 2010 10 private complaint. Regarding the omission in the complaint given to the Vanitha Commission and the Dy.S.P etc, there is sufficient explanation which is evident from the materials collected during investigation. A reading of the case diary as a whole will reveal that the allegations made against petitioners are prima facie true and this is not a fit case to grant anticipatory bail, it is submitted. 19. On hearing both sides and on going through the case diary, I find that there are ample materials in the case diary to support the present case. It is true that there are some vital omissions in the statements given to the Womens Commission and also the Dy.S.P regarding the incident. But, as pointed out by learned Public Prosecutor these can be well-explained by the materials in the case diary. Anyway, it may not be proper at this stage to make any adverse inference on the basis of such omissions. As per the medical records even prior to filing of complaint, victim had divulged relevant facts to the hospital authorities and it is difficult to over-rule such evidence at this stage. 20. The case diary also reveals that the alleged victim had sustained injuries to the private part during the incident and she had used some home- made herbal medicine for the injury sustained by her to relieve the pain. She was also given some B.A Nos.263 and 1112 OF 2010 11 ointment from the hospital for this complaint. The medical records and the statements of the employees of the hospital would all support the present case. 21. The question why she suppressed these facts at the enquiry conducted by to the Dy.S.P is a matter to be explained at the time of evidence. It can be decided at the trial. At this stage, I am not inclined to make any conclusions against the present case especially in the light of overwhelming materials available in the case diary. Considering the gravity of offence and the various facts and circumstances discussed and what is contained in the case diary, I have no hesitation to hold that this is not a fit case to grant anticipatory bail. The traumatic experiences which de facto complainant had gone throughis clearly depicted in the case diary, the medical records and the statements of various independent witnesses. 22. It also appears from the case diary that de facto complainant is left without any shelter after the incident. She was abandoned even by her kith and kin since she refused to obey the instructions of her own brother to settle the issue. She therefore, sought help from strangers for shelter and subsistence, and it was the doctor who helped her to secure a job, on noting her present pitiable condition. She is almost orphaned after the heinous crime, she ever lost her mental B.A Nos.263 and 1112 OF 2010 12 balance and she underwent treatment by the psychiatrist. I cannot shut my eyes to the several facts disclosed by the case diary. I have no doubt that this is not a case for anticipatory bail. The incident happened as early as on 04/02/2008 and more than 5 months elapsed. Petitioners are bound to surrender and co-operate with investigation. No further application for anticipatory bail by petitioners in this crime will be entertained by this court hereafter, since, any further delay in their surrender is likely to affect the investigation adversely. Petitions are dismissed. K.HEMA JUDGE vdv