IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 Bail Appl..No. 1460 of 2008() ----------------------------- CMP.354/2008 of DISTRICT COURT, KALPETTA CRIME NO.40/08 OF PADINJARATHARA POLICE STATION .................... PETITIONER/ACCUSED ----------------------------------- THOMAS JOSEPH @ V.J.THOMAS, S/O.V.M.JOSEPH, AGED 37 YEARS, VELLANKAL HOUSE, PADINJARATHARA AMSOM, (UNDER CUSTODY). BY ADV. SRI.M.RAMESH CHANDER RESPONDENTS: STATE ------------------ STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 1460 OF 2008 ------------------------------------------------- Dated this the 11th day of March, 2008 ORDER Application for regular bail. The petitioner faces allegations under Sec.376 of the IPC. He is alleged to have committed rape on his own daughter aged about 11 years. The petitioner was arrested on 16/2/08. He continues in custody from that date. 2. The crux of the allegations against the petitioner is that he, who was sleeping along with his daughter aged about 11 years, had got her undressed and had committed rape on her. He has been indulging in such course repeatedly, it is alleged. The child made a complaint about her father at the school when a teacher, who had undergone training in counseling, wanted the students to come out with their personal problems. She later repeated such allegations to her class teacher also. The anxious teachers informed the child B.A. No. 1460 OF 2008 -: 2 :- line and the child was taken to the worker of the child line. The allegations were repeated by the child to such child line worker also. Thereupon, the child was taken by the child line worker before the learned Chief Judicial Magistrate. A statement of the child was recorded by the learned C.J.M. who forwarded the complaint to the police for taking necessary action. The learned Magistrate also directed the police to ensure the arrest of the petitioner. Accordingly, the petitioner has been arrested and he continues in custody from 16/2/08. Investigation is in progress. The petitioner continues in custody from 16/2/08. 3. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. The child is having some psychological peculiarities. For inexplicable reasons, the child was making totally false allegations. The details about the sexual intercourse are narrated by the child. It is submitted that the child sleeps along with his parents in a one room apartment and the child must have had occasions to see the sexual intercourse between the parents and the child is building up stories on the basis of such information which it has. The learned counsel for the petitioner submits that the child has been showing certain peculiarities and cooking up false versions merely for the purpose of sensation and for creating fright. The child had, it is submitted, gone to a neighbour's house and had B.A. No. 1460 OF 2008 -: 3 :- advanced a totally false, incorrect and surprising version that the child of the neighbour had died in an accident. It is submitted that there is some peculiarities in the child and the mind deserves to be fathomed to get explanation for such inexplicable conduct of the child. The learned counsel for the petitioner submits that to the best of the knowledge of the parents, the child has not been violated by any one and this is borne out to a certain extent by the report of the medical examination. The child aged 11 years alleges continuous completed acts of sexual intercourse by her father on her. But the medical evidence does not support such allegation. The learned counsel for the petitioner, in these circumstances, submits that the petitioner may not be compelled to continue to endure the trauma of incarceration. He has already been remaining in custody from 16/2/08, it is submitted. 4. The learned Public Prosecutor, after taking instructions, submits that the Investigator also wants to delve deep into the subject and ascertain the truth. More detailed and exhaustive investigation is necessary on the relevant aspects. Sec.164 statement of the child was recorded and it is seen now that the child has given a different version to the learned Magistrate when her statement under Sec.164 was recorded. A copy of that statement is not made available. The Registry was directed to B.A. No. 1460 OF 2008 -: 4 :- ascertain whether such statement has been recorded and if so, the contents thereof. The report submitted by the Registry shows that the child in her Sec.164 statement has advanced a version that her earlier version is not correct and that apprehending loss of love and affection consequent to the arrival of her sibling, she has cooked up stories against her father. Sec.161 statement of the mother has also been recorded and that also goes a long way to support the defence advanced by the petitioner. 5. Be that as it may, it is not necessary for me to embark on any detailed discussions about the acceptability of the allegations or the credibility of the data collected. Suffice it to say that a perusal of the Case Diary which has been placed before me as also the report about Sec.164 statement of the child recorded does convince me that a very competent investigation deserves to be conducted. An assessment of the psychological state of the child must certainly be conducted to evaluate the acceptability of the allegations against the petitioner. I expect the Investigating Officer to take necessary steps in this regard as expeditiously as possible. I am satisfied that regular bail can be granted to the petitioner subject to appropriate conditions which shall ensure the interests of a fair, B.A. No. 1460 OF 2008 -: 5 :- efficient and expeditious investigation. 6. In the result: (a) The application is allowed. (b) The petitioner shall be released on bail on the following terms and conditions: (i) The petitioner shall execute a bond for Rs.25,000/- with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. (ii) The petitioner shall make himself available for interrogation before the Investigating Officer on all Mondays between 10 a.m. and 12 noon for a period of two months and thereafter as and when directed by the Investigating Officer in writing to do so. (iii) During the said period of two months, the petitioner shall not enter the Sessions Division of Wayanad, except for the purpose of complying with Condition No.(ii) above and shall have no interaction whatsoever with the child during the said period of two months. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge