ASWIN PRAKASH vs STATE OF KERALA

This petition is filed under section 439 of the Code of Criminal Procedure.

The petitioner, a final year Engineering student, is arrayed as the sole accused in Crime No.1445 of 2017 of the Thrissur West Police Station.

He is accused of having committed offences punishable under sections 376 of the IPC and under sections 6 r/w. Section 5 & Section 3 r/w

Section 4 of the Protection of Children from Sexual offences Act, 2012.

The petitioner is the son of the maternal uncle of the victim. According to the victim, due to irreconcilable disputes between her parents, she

along with her father were residing in her maternal uncle''s house for the past more than 1 1/2 months. Her uncle was admitted in the hospital and

her aunt was with him. On 27.11.2017 at 5.30 a.m., her father went home for some errands. At that time, the petitioner is alleged to have entered

her room and subjected her to penetrative sexual assault. She managed to somehow kick him off and locked herself inside the bathroom. Later,

she went to her school without disclosing the fact to anybody. Later, as per her request, her father admitted her in a hostel at Kottapuram. On

17.12.2017, she informed her hostel warden that she wanted to meet her mother. When she met her mother, she is alleged to have disclosed about

the incident which took place on 27.11.2017. On the basis of the information furnished by her to the Station House Officer of the Thrissur West

Police Station, the Crime was registered. The petitioner was arrested on 18.12.2017 and is now in judicial custody.

The learned counsel appearing for the petitioner submitted that the petitioner was trapped and the allegations are without even a tinge of truth.

Referring to Annexure-C, it is submitted that the victim had preferred a complaint before the Chairman of the Child Welfare Committee, Thrissur,

wherein very serious allegations are levelled against the mother. In the statement, the victim states about the cruel manner in which she was being

treated by her mother. She also alleges that her mother constantly questions her chastity. Her prayer before the Child Welfare Committee was to

permit her to reside in a hostel and for providing her protection against her mother. The learned counsel has also referred to the explanation offered

by the mother of the victim before the Child Welfare Committee. It is urged that the relationship between the parents of the victim was very much

strained and the main grievance of the mother was that the father of the petitioner was supporting her husband. Reference is also made to the

statement of the mother of the victim and her father before the Assistant Police Commissioner, Thrissur, which is produced as Annexure-B, to

contend that there are ample reasons for implicating the petitioner as an accused in the Crime. Finally, the learned counsel prays that the petitioner

having been in custody from 18.12.2017 may now be released on bail.

The learned Public Prosecutor has opposed the prayer. It is submitted that the statement of the victim has been recorded by the learned

Magistrate and the victim had asserted that the petitioner herein, who is the direct cousin of the victim, had sexually assaulted her on the day when

she was residing in his house. The learned Public Prosecutor submits that the short delay in registering the crime cannot be a reason to grant any

advantage to the petitioner. It is further submitted that medical records corroborate the case of the prosecution and in that view of the matter, this

Court will not be justified in enlarging the petitioner on bail.

I have considered the submissions advanced and have gone through the materials on record. It appears from the materials produced before this

Court that the relationship between the father and mother of the victim were very strained. Several allegations are levelled by them against each

other. The victim has also levelled very serious allegations against her mother in her statement before the Child Welfare Committee. Prima facie, I

find merit in the submission of the learned counsel that there are some discrepancies in the version of the victim. The petitioner herein is a final year

Engineering student and he has been undergoing incarceration from 18.12.2017. On going through the case diary, it appears that the investigation

has reached the final stages.

Having regard to the nature and gravity of the allegations, the materials in support thereof, the antecedents of the petitioner, the stage of

investigation, the period of detention undergone and the reasonable possibility of ensuring the presence of the petitioner at the stage of trial, I am

inclined to grant bail to the petitioner.

In the result, this petition will stand allowed. However, it shall be subject to the following conditions:

(a) 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.

(b) The petitioner shall continue to appear before the Investigating Officer on all Sundays between 10 a.m. and 1 p.m., for a period of one month

or till the final report is filed whichever is earlier.

(c) 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.

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

(e) The petitioner shall surrender his passport before the court below or if he does not have one, he shall file an affidavit to that effect within five

days of his release. Application for release of the passport, if any, shall be considered by the Trial court at the appropriate stage.

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.