Sunil Kumar @ Gundu vs State Of Kerala

Ziyad Rahman A.A., J

This is an application filed u/s 439 of the Code of Criminal Procedure seeking regular bail.

The petitioner is the 1st accused in Crime No.166 of 2023 of Ayiroor Police Station, which was registered for the offences punishable under Sections 450, 376, 354, 354A of IPC and under Section 92B of Rights of Persons with Disabilities Act.

The prosecution case is that on 08.02.2023 at about 2.30 PM, the petitioner/accused trespassed into the house of the informant, grabbed the breast of her mentally challenged daughter and also committed rape on her. The crime was registered based on the information furnished by the mother of the victim and as part of the investigation, the petitioner was arrested on 31.03.2023. Since then, he has been under judicial detention. This bail application is submitted in such circumstances.

Heard Sri.Rajesh R(Varkala), learned counsel for the petitioner and Smt.Seetha S. learned Public Prosecutor for the State.

The learned counsel for the petitioner submits that the petitioner is innocent of all the allegations. According to him, there are certain property disputes between the petitioner and the de facto complainant’s family and a false complaint was registered due to the same. Materials placed on record are not sufficient to establish the commission of rape, contends the learned counsel for the petitioner. The petitioner submits that he is ready and willing to abide by any condition that may be imposed by this Court.

The learned Public Prosecutor on the other hand, would oppose the aforesaid application. It is pointed out that there are specific allegations against the petitioner. Considering the serious nature of the allegations, the bail cannot be granted to the petitioner. However, it is submitted by the learned Public Prosecutor that the investigation in this case is already over, and the final report has been submitted.

I have gone through the records. The learned Public Prosecutor made available relevant case records, including the statement of the victim under Section 164 Cr.P.C. Since the victim was a mentally challenged woman, the statement was recorded with the help of an interpreter. The name of the petitioner is not mentioned in the said statement. Similarly, from the medical report also, it is evident that, as the victim resisted the examination, an effective medical examination could not be done, and therefore, the said document also would not indicate any evidence supporting the prosecution. The crime was registered mainly based on the statement given by the Mother of the victim. In such circumstances, after considering all the above aspects, I deem it appropriate to pass an order granting bail to the petitioner. Moreover, the petitioner has been in custody since 31.03.2023, and the final report is also submitted. Therefore, I do not find the necessity for further incarceration of the petitioner.

In such circumstances, this application is allowed and the petitioner is directed to be released on bail subject to 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 for the like sum each to the satisfaction of the jurisdictional Court.

(ii) The petitioner shall also appear before the investigating officer as and when required.

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

(iv) 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.

(v) The petitioner shall not leave India without the permission of the trial Court.

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