IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 Bail Appl..No. 6848 of 2008() ----------------------------- CRMP.3360/2008 of DISTRICT COURT, PALAKKAD (CRIME NO.802/2008 OF OTTAPALAM POLICE STATION, PALAKKAD DISTRICT) PETITIONER/ACCUSED: -------------------- SHERIF ALIAS MOHAMMED SHERIF, AGED 22 YEARS, S/O.ABDUL KHADER, KOORIYIL VEEDU POOLAKUNDU, OTTAPALAM TALUK, PALAKKAD. BY ADV. SRI.NIREESH MATHEW RESPONDENT(S): --------------- STATE OF KERALA, REP. BY DU.S.P.SHORNUR, PALAKKAD POLICE STATION, PALAKKAD REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. M.S.BREEZ. THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. --------------------------------------------------- Bail Appl.No. 6848 of 2008 --------------------------------------------------- Dated this the 13th day of November, 2008. ORDER Petition for bail. 2. The alleged offences are under Sections 376 and 366 IPC and Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. According to prosecution, petitioner kidnapped the alleged victim, who is aged 17 years, and taken her to Coimbatore and she was subjected to sexual intercourse repeatedly from 17.10.2008 onwards. When she told him that she must be taken to her house, he told her that his need was over. The victim's father made a complaint when she was found missing and a crime was registered on 20.10.2008. 3. Learned counsel for petitioner submitted that petitioner and alleged victim were in love with each other, and she was working in textile shop and petitioner was working in a vegetable shop nearby. She had gone with petitioner on her own volition and it is not correct to say that there was any rape. From her statement itself, it is clear that there was an alleged promise to marry the victim. Petitioner is, even now, prepared to marry her. From the statement, it is also clear [B.A.No.6848/08] 2 that there was sexual act with consent, it is submitted. Therefore, petitioner may be granted bail, it is submitted. Petitioner is in custody since 21.10.2008. He was arrested along with the girl, who was accompanying him from 17.10.2008 onwards till the arrest. 4. This petition is opposed. Learned Public Prosecutor submitted that, the fact that the girl was present along with him from 17.10.2006 till 21.102008, is borne out by record. It is also true that he had promised to marry her as per the statement of the girl but her specific allegation is that she was not willing for any sexual intercourse before marriage and despite her resistance she was raped by petitioner. 5. On hearing both sides and on going through the case diary, it cannot be said at this stage, without cross examination of the girl, that the sexual act was committed with her consent. It is not a fact which is to be concluded at this stage on the scale of probabilities alone. The offence being serious in nature and investigation is being proceeded with, I am not inclined to grant anticipatory bail to petitioner at this stage, since his release is likely to affect investigation adversely. Petition is dismissed. K. HEMA, JUDGE. Krs.