Danush @ Vineeth vs State Of Kerala

Ziyad Rahman A.A., J

This is an application filed under Section 439 of the Code of Criminal Procedure seeking regular bail.

The petitioner is the sole accused in Crime No.529/2023 of Erumely Police Station. The offences alleged against the petitioner are punishable under Sections 366A, 376, 376(2)(n) of the Indian Penal Code and Sections 4(1) read with section 3(a), 6 read with Section 5(l), 12 read with Section 11(i) of the POCSO Act.

The prosecution case is that on 20.04.2023, the accused kidnapped the victim girl, who was aged 17 ½ years at the relevant time, from the lawful custody of her guardians, took her to a lodge near Medical College, Kottayam and had sexual intercourse with her. It is also alleged that such sexual acts were repeated on several occasions. The crime was registered on 28.04.2023 in connection with the same, consequent to which the petitioner surrendered before the Investigating Officer on 05.05.2023. Since then, he has been under judicial detention, this application for regular bail is submitted in such circumstances.

Heard, Sri. K. Jaishankar, the learned Counsel appearing for the petitioner and Smt. Seetha S, the learned Public Prosecutor appearing for the State.

The learned counsel for the petitioner submits that the petitioner is innocent of all the allegations, and he was falsely implicated in the said case, and he denies all the allegations raised against him. According to him, even as per the statement of the victim, it is evident that the petitioner, who is aged 23 years, was in a love affair with the defacto complainant, and the incident occurred during the course of such relationship. The petitioner submits that he has been under custody for about 50 days and that there is no purpose in keeping the petitioner under detention any longer. The petitioner is ready and willing to abide by any conditions that may be imposed by this Court.

On the other hand, the learned Public Prosecutor would oppose the aforesaid application by pointing out that there are specific allegations against the petitioner, and the matter is under investigation. In such circumstances, the dismissal of the bail application was sought.

I have gone through the records and heard the contentions raised from both sides. It is true that there are allegations of sexual intercourse with a minor girl. In the statements of the victim given before the police as well as the learned Magistrate under Section 164 of the Cr.P.C., the relationship between the petitioner and the defacto complainant is admitted. The sexual intercourse between the parties appears to be based on mutual consent. It is true that since the victim is a minor, her consent may not be a relevant factor as far as the offence of rape is concerned. However, since what is being considered by this Court is a bail application, where the question is whether the petitioner is to be released on bail or not, I am of the view that the said aspect can have some relevance. This is particularly when the petitioner is young, and admittedly there is a love affair between him and the defacto complainant. In such circumstances, I do not find any necessity for continuing the custody of the petitioner, and therefore, the petitioner can be released on bail by imposing appropriate conditions to ensure that the petitioner is not contacting or intimidating any witnesses. Accordingly, this application is allowed on the following conditions:-

i) The petitioner shall be released on bail on executing a bond for Rs. 1,00,000/- (Rupees One Lakh only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Magistrate.

ii) The petitioner shall surrender his passport to the investigating Officer, and the petitioner shall fully co-operate with the investigation.

iii) The petitioner shall appear before the Investigating Officer between 10.00 a.m and 11.00 a.m every Wednesday until the filing of final report.

iv) The petitioner shall also appear before the investigating officer as and when required by him.

v) The petitioner shall not commit any offence of similar nature while on bail.

vi) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

vii) The petitioner shall not leave the State of Kerala without the permission of the trial Court.

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