IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 Bail Appl..No. 7603 of 2011() ----------------------------- CRMP.2345/2011 of D.C. & SESSIONS COURT,KOLLAM CRIME NO.395/2011 OF KOLLAM WEST POLICE STATION .................... PETITIONER:ACCUSED -------------------- NIKESH, AGED 27 YEARS, S/O.MARCOSE VADAKKEVEETTIL, BADIYADUKKA VILLAGE PERADALA PO, KASARCODE DISTRICT. BY ADV. SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA RESPONDENT: --------------- STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE KOLLAM WEST POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 26/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.7603 of 2011 ---------------------------------------------- Dated this the 26th day of September, 2011 ORDER This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is accused No.8 in Crime No.395 of 2011 of Kollam West Police Station. 2. The offences alleged against the petitioner are under Sections 366-A and 376 (2) (g) read with Section 34 of the Indian Penal Code. 3. The prosecution case is the following:- The victim girl, who was a minor at the relevant time was found in suspicious circumstances within the limits of Sakthikulangara Police Station. Her mother was working abroad. Her father is stated to be an alcoholic and she had difference of opinion with her father. The girl was sent to the Mahila Mandiram, Anchukallumoodu, Kollam. She escaped from the Mahila Mandiram. The matter was reported to the police. The police registered the crime and she was taken to custody. Bail Appln.No.7603/2011 : 2 : 4. Meanwhile, one Noushad filed W.P.(Crl.) No.173 of 2011 alleging that the girl was illegally detained at Mahila Manidaram. Noushad claimed to be her lover. 5. The girl was produced before the High Court. Her father also appeared. The girl's father produced the S.S.L.C. Book of the girl from which it was revealed that her date of birth was 17/05/1995 and that she was a minor at the relevant time. The Division Bench directed to constitute a Special Team for the investigation of the case. Inspector General of Police, Central Zone was also directed to file report. Investigation revealed that the girl was sexually abused by several persons namely, Noushad, Sooraj @ Benny, Nikesh (petitioner), Laiju, Lijo, Mano @ Loona and one Ratheesh at various dates and places. 6. On medical examination, it was revealed that the girl was pregnant. The Division Bench appointed the District Collector as the guardian of the minor girl and in the peculiar facts and circumstances of the case, her pregnancy was allowed to be terminated. The girl is still in the Mahila Mandiram under police protection. Bail Appln.No.7603/2011 : 3 : 7. The allegation is that the petitioner sexually abused the girl at Guruvayoor and Kozhikode on two different occasions. 8. The petitioner was arrested on 16/08/2011. The investigation is in progress. 9. The offence alleged against the petitioner and others is very grave in nature. The minor girl was sexually abused by several persons exploiting the circumstances in her family. If the petitioner is released on bail at this stage, there is every likelihood of the witnesses being intimidated or influenced and the evidence being tampered. 10. The learned Counsel for the petitioner submitted that even going by the F.I. Statement of the Superintendent of the Mahila Mandiram, it is clear that the girl is not a minor. The counsel submitted that even if all the allegations are taken as true, it cannot be said that the petitioner sexually abused the girl knowing that she was below 16 years of age at the relevant time. As held in Manaf and others v. State of Kerala : ILR 2011 (3) Kerala 641 = 2011 (3) KHC 396 and Sunny v. State : 2011 (3) KLT 885, the knowledge of Bail Appln.No.7603/2011 : 4 : the accused about the age of the victim is not relevant at all in considering the question whether offence Section 376 of the I.P.C. was committed. For the aforesaid reasons, the Bail Application is dismissed. K.T.SANKARAN, JUDGE skj