IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 Bail Appl..No. 6653 of 2008(F) ------------------------------------- CRIME NO.339/2008 OF RANNY POLICE STATION PETITIONERS/ACCUSED : ------------------------------ 1. SANKARAPILLAI, S/O.KUNJUPILLAI, RADHABHAVAN PUTHUSSERY MALA, KOMPALAMPOIKA, PATHANAMTHITTA. 2. RADHAKRISHNAN @ MOHANAN, S/O.SANKARAPILLAI, DO.DO. 3. ANILKUMAR @ KOCHUMON, S/O.SANKARAPILLAI, DO.DO. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT/STATE : --------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------ B.A. No.6653 OF 2008 ------------------------------ Dated this the 27th day of November, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offence is under Sections 376 read with 34 of I.P.C. A crime was registered on the basis of a complaint made by the alleged victim's mother alleging that her daughter was subjected to sexual assault by the petitioners and she became pregnant and she gave birth to a child. Thereafter, petitioners agreed to take up the responsibility of the child and the mother, but they did not do so. Hence the complaint was lodged. 3. Learned counsel for petitioners submitted that petitioners are innocent of the allegations made. The victim has become pregnant 23 years back and she has a child aged 23 years. As per the prosecution records, a long delay is caused in filing this complaint. The complaint is filed only with a view to harass the petitioners and to get some aid from the them. First petitioner is aged 71 years and second petitioner is 42 years and third petitioner is 37 years now. The Circle Inspector of police, Ranni Police Station, is closely related to the defacto complainant and therefore this false complaint has been lodged B.A.6653 of 2008 2 at the belated stage, it is submitted. 4. It is also pointed out that at the time of alleged offence the alleged victim was a major and the third petitioner was aged only 14 years, as evidenced by the extract of the S.S.L.C. Book, Annexure 1. Second petitioner was aged 20 years and first petitioner was aged 48 years. It is also submitted that to prove the bonafides of the petitioners, they are prepared to undertake D.N.A. test and if any one of the petitioners is responsible for the paternity of the child, he is prepared to maintain the child. To prove the innocence, the petitioners are ready to subject themselves to D.N.A. Test. An affidavit to that effect is filed as Annexure 2. 5. Learned Public Prosecutor submitted that even though there is a long delay of 23 years, as per the allegations made, there was a clear case of rape by all the 3 petitioners. But in the light of the age of third petitioner at the time of offence, he has no objection in granting bail to the third petitioner, it is submitted. It is also submitted that as per the instructions the C.I. is not related to the victim. On hearing both sides, I find that anticipatory bail can be granted to third petitioner. But in the nature of allegations made, B.A.6653 of 2008 3 I am reluctant to grant anticipatory bail to petitioners 1 and 2. However, I make it clear that consideration for anticipatory bail are different from consideration for bail under Section 437 Cr.P.C. In the result, the following order is passed : 1. Third petitioner shall surrender before the Magistrate court concerned and he shall be released on bail on his executing bond for Rs.25,000/- with two solvent sureties each for like sum to the satisfaction of the learned Magistrate on the following conditions : i. He shall not influence or intimidate any witness or commit any offence while on bail. ii. He shall report before the Investigating Officer on first Monday of every month. 2. The prayer for anticipatory bail by accused nos.1 and 2 is rejected. The petition is party allowed. K.HEMA, JUDGE pac