Ebrahim A @ Althaf vs State Of Kerala

Ziyad Rahman A.A., J

The petitioner is the accused in Crime No.474/2022 of Kannamaly Police Station, which was registered for the offence punishable under Section 376 of the Indian Penal Code. Initially, the crime was registered against the petitioner as the first accused and also against another person as the second accused.

The prosecution case is that, on 28.12.2021 at 4.30 p.m, with the intention to commit gang rape on the defacto complainant, they took the defacto complainant to a tourist resort, namely, Dhyan Resort at Palluruthy and the first accused sexually assaulted her, without her consent and the second accused also allegedly committed rape on her. During the investigation, the defacto complainant gave another statement wherein it was mentioned that the second accused did not commit rape on her, and consequently, his name was deleted from the list of accused. Now, the petitioner is the sole accused in the said case.

The petitioner surrendered before the Investigating Officer on 16.01.2023, and since then, he has been under judicial custody. The petitioner submitted this bail application in such circumstances seeking regular bail.

The learned counsel appearing for the petitioner contends that, the petitioner is falsely implicated in the said case. It is contended that there were certain money transactions between the parties, and certain amounts were due from the defacto complainant to him. Moreover, it is pointed out that the defacto complainant is a lady aged 45 years, and the allegation of forceful sexual intercourse is not correct. According to the learned counsel for the petitioner, as per the FI Statement given by the defacto complainant, she raised allegations against two persons, and later, she withdrew the allegations against the second accused. The aforesaid change of version, during the course of the investigation, affects the veracity of the allegations, contends the learned counsel for the petitioner. Further, this is a case in which the petitioner surrendered before the Court based on the directions issued by the Hon’ble Supreme Court in the application submitted by him seeking anticipatory bail. It is also pointed out that while a direction was given to him to surrender before the Investigation Officer, interim protection was granted by the Hon’ble Supreme Court for a limited period. The petitioner complied with the time limit provided in the said order and surrendered before the Investigation Officer. In such circumstances, the learned counsel for the petitioner prays that a lenient view be taken in the matter.

On the other hand, the learned Public Prosecutor would oppose the said contentions. It is pointed out that there are specific allegations against the petitioner. As per the statement given by the defacto complainant, she was taken to a tourist Resort forcefully and had sexual intercourse without her consent, and therefore, the prayer sought by the petitioner cannot be granted. It is also contended that if the petitioner is released on bail at this stage, it is likely to affect the investigation of the said case.

I have gone through the records and heard the contentions raised from either side. As pointed out by the learned counsel for the petitioner, there is a substantial change in the version of the defacto complainant from the FIS and the subsequent statement given. Moreover, there is a considerable delay in reporting the matter as well. According to the defacto complainant, the incident occurred on 28.12.2021, whereas the FIR was registered only on 01.09.2022. The financial transactions between the parties are also apparently admitted by the defacto complainant in all the said statements. Considering the aforesaid aspects, I am of the view that the bail can be granted to the petitioner. With regard to the apprehension voiced by the learned Public Prosecutor as to the possibility of influence being exerted upon the witnesses, I am of the view that the same can be addressed by incorporating appropriate conditions for the same. From the facts and circumstances of the case, further detention of the petitioner appears to be not necessary as well.

In such circumstances, this bail application is allowed, and the petitioner is directed to be released on bail subject to the following conditions:

i The petitioner shall execute 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 Court.

ii The petitioner shall fully cooperate with the investigation.

iii The petitioner shall appear before the Investigating Officer between 10.00 a.m and 11.00 a.m every Saturday until the filing of the final report. The petitioner shall also appear before the Investigating Officer as and when required.

iv The petitioner shall not involve in any other similar offences while on bail.

v The petitioner shall not make any attempt to contact the victim or any other prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence and do any acts or influence or intimidate any witnesses or other persons related to the investigation.

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

vii) The petitioner shall surrender his passport before the jurisdictional Court, and if he does not have a passport, he shall file an affidavit to that effect.

In case of any violations of any conditions, it shall be open for the Investigation Officer to move the jurisdictional Court for cancellation of bail.