Thomaskutty Joseph vs State Of Kerala

Bechu Kurian Thomas, J.

This is an application seeking regular bail filed under Section 439 of the Code of Criminal Procedure, 1973.

Petitioner is the sole accused in Crime No.67/2022 of Peerumedu Police Station, Idukki District, alleging offences punishable under Sections 376(1), 376(2)(n) and 506 of the Indian Penal Code, 1860 and Section 67A of the Information Technology Act, 2000.

According to the prosecution, the accused had on the basis of a promise of marriage, raped the victim at a resort at Kuttikanam in the month of September, 2021 and also published their photographs through the Instagram and thereby committed the offences alleged.

Sri.John Sebastian Ralph, the learned counsel for the petitioner contended that the entire prosecution allegations are false and the incident as alleged had not occurred. It was further submitted that even if the prosecution allegations are assumed to be correct, the same would only reveal a consensual relationship and that the complaint has been filed at the instigation of the father of the victim. The learned counsel further pointed out that petitioner is a 23 year old student presently studying for Management at Ireland. It was also submitted that there was no fraudulent promise of marriage nor was consent for sexual relationship obtained by any such promise. The learned counsel relying upon the statement of the victim, submitted that the alleged physical relationship was only a natural consequence of their relationship and that the physical relationship, if any, cannot be stated to be rape nor was consent to such a relationship obtained by any fraudulent promise of marriage. It was submitted that petitioner is in fact willing to marry the victim even now. It was also submitted that considering the period of detention already undergone, petitioner ought not to be continued in detention.

Smt.M.K.Pushpalatha, the learned Public Prosecutor opposed the grant of bail and contended that the allegations are serious and that notwithstanding the young age of the petitioner, since there is every chance of him absconding and also considering the nature of the allegations, petitioner ought not to be released on bail.

I have considered the rival contentions and have also perused the statement of the victim as well as the entire records produced including the WhatsApp chats allegedly exchanged between the petitioner and the victim.

In the decision reported in Druvaram Murlidhar Sonar v. State of Maharashtra [(2019) 18 SCC 191], Pramod Suryabhan Pawar v. State of Maharashtra and Others [(2019) 9 SCC 608] and also the recent decision in Sonu Alias Subhash Kumar v. State of Uttar Pradesh and Another [AIR 2021 SC 1405], the Supreme Court had delineated the difference between physical relationship on the basis of a false promise of marriage and a failure to abide by a promise of marriage for reasons that are not fraudulent. It was also pointed out that in order to fall within the contours of rape on the basis of a false promise of marriage, the promise itself must have been fraudulent and that the consent for sexual intercourse must have been obtained on the basis of such a fraudulent promise.

The learned counsel for the petitioner had submitted that petitioner is still willing to marry the victim. Petitioner is still a student studying at Ireland. The victim is alleged to have been raped at a resort at Kuttikanam which is a hill station. Considering the above circumstances and the fact that petitioner is only 23 years in age and that he had already undergone detention from 20.12.2022, I am of the view that the continued detention of the petitioner is not essential for the purpose of investigation.

Accordingly, I allow this application on the following conditions :-

(a) Petitioner shall be released on bail on him 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) Petitioner shall appear before the Investigating Officer as and when required.

(c) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or contact the victim or her family members.

(d) Petitioner shall not commit any similar offences while he is on bail.

(e) Petitioner shall not leave India without the permission of the Court having jurisdiction.

(f) If petitioner wants to continue his studies in Ireland, necessary permission has to be obtained for his travel abroad and to pursue his studies by preferring appropriate applications before the jurisdictional court. If such applications are filed, the same shall be considered and if allowed, appropriate conditions shall also be imposed to ensure the presence of the accused during trial before the court and also before the Investigating Officer as and when required.

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, notwithstanding the bail having been granted by this Court.