Ahsik vs State Of Kerala

This petition is filed under Section 439 of the Cr.P.C.

The petitioner herein is the sole accused in Crime No.58 of 2018 of the Poochakkal Police Station, registered under Sections 376(2)(f)(i)(n) of the Indian Penal Code and 5(1) (m) r/w. 6, 9(1)(m) r/w. 10, 11(5) r/w. 12 of the Protection of Children from Sexual Offences Act, 2012.

The victim in the instant case is the maternal uncle's daughter of the petitioner. The Crime was registered on the basis of an information furnished by the child on 14.1.2018. According to the victim, about 2 years back while she was studying in the VI Standard, the victim along with her brother had gone to the family house after their annual examinations. She along with the near relatives of the petitioner had slept in the hall of the house. It is alleged that the petitioner with sexual intent, embraced her and touched her private parts. It is further alleged that after the annual exams of 2016, the petitioner herein had gone to the home of the de facto complainant and after showing some nude photographs on his mobile phone, subjected the victim to penetrative sexual assault. Later, the victim disclosed the incident to her mother who in turn took her to a Counsellor. The victim was directed to the police who after recording her statements, registered the Crime.

The learned counsel appearing for the petitioner submitted that the allegations are absolutely without basis. According to the learned counsel, the petitioner is a midget and is a person with disability. Much reliance is placed on Annexure -A certificate of disability issued by the Additional Superintendent and Chairman of the Medical Board, Medical College Hospital, Alappuzha, to buttress the said submission. The allegation of sexual abuse is bereft of truth, according to the learned counsel. The same is not substantiated by the medical records. It is vehemently urged that the incident had taken place more than two years back and there was no reason not to disclose the said fact before the authorities. According to the learned counsel, the victim had also stated that she had witnessed the petitioner sexually abusing another child. However, the said child had denied any such incident. This would show that the victim was lying on material points. The learned counsel would further submit that his continued incarceration in the facts and circumstances will only be punitive.

The learned Public Prosecutor has vehemently opposed the prayer. It was submitted that the allegations are extremely grave and highlighting the age of the victim, it is urged that no leniency is warranted. It is further submitted that the victim was a near relative of the petitioner and there is every likelihood that the petitioner would influence the witnesses and tamper with the evidence.

I have considered the submissions advanced and have gone through the case diary.

Though the allegations are grave, it appears that the investigation is in the final stages. It is not reported that the petitioner is a person with prior criminal antecedents. The medical evidence does not reveal that the victim was subjected to penetrative sexual assault. The petitioner appears to be a midget and a person with disabilities. To allay the apprehension of the prosecution that the petitioner would manage to terrorize the victim, I am of the view that necessary conditions can be imposed to ensure that he keep himself away.

In the result, this petition will stand allowed. The petitioner shall be released on bail on his executing a bond for Rs.50,000/-(Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. The above order shall be subject to the following conditions.

a) The petitioner shall appear before the Investigating Officer on all Sundays between 10 AM and 1 PM, for 3 months or till final report is filed, whichever is earlier.

b) The petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence. He shall not make any attempt to contact the victim or her family members.

c) The petitioner shall not enter the limits of the Poochakkal Police Station for a period of three months except for complying with the conditions contained in this order. If for any extraordinary reason the petitioner require to enter the limits or the Station, previous permission has to be obtained from the Court having jurisdiction.

d) The petitioner shall not commit any offence while he is on bail.

e) If the petitioner intends to leave India, he shall obtain previous permission from the court having jurisdiction.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.