VIJU P VIDHYA vs STATE OF KERALA & ANR

This petition is filed under Section 438 of the Code of Criminal Procedure.

The petitioner herein is the 1st accused in Crime No.696/2017 of Pathanamthitta Police Station, registered alleging offence punishable under

Sections 323, 376, 120B, 450, 420, 342 r/w. Sec.34 of the IPC.

The victim in the instant case is a lady aged 39 years. She is a divorcee and the mother of two children. According to the victim, her first

marriage was solemnized in the year 2002. After the marriage, she stayed in the residential home of her uncle for the purpose of her studies. The

petitioner herein was the driver of her uncle. It is alleged that sometime in the month of June or July, 2001, the petitioner approached her at about

8.30 p.m., while nobody was at home, and had sexual intercourse with her. Though she had objected to the acts, the petitioner persisted and

raped her. The de facto complainant did not disclose the said fact to any person. According to the victim, she is a nurse by profession and she later

went to Africa. She returned back in the year 2005. In the meantime, her marriage had ended in a divorce. After returning from Africa, the 2nd

accused, who is a near relative of the 1st accused, approached her and demanded a sum of Rs.10,000/-. When she refused to oblige, she was

told that her relationship with the 1st accused would be made public. She was forced to give the amount. It is alleged that thereafter the 3rd

accused approached her and demanded money. The same modus operandi was adopted. According to the victim, in the same mode, a sum of

Rs.20 lakhs was taken from her by the accused Nos.2 and 3. It is also alleged that sometime in the year 2007, the de facto complainant and her

child were abducted by the accused Nos. 1 and 4 and they were taken to Kuttalam. The 1st accused tried to molest her but she managed to get

away. It is further alleged that thereafter, on repeated occasions, she made attempts to commit suicide. She had borrowed large sums of money

from friends and neighbours for her sustenance and she is not in a position to repay the same. On 7.2.2017, she left her house and went to

Palakkad and spent a night at the Palakkad Railway Station. A complaint of woman missing was filed by one of her family members. Later, she

was traced out from her sister''s house and was taken to the Pathanamthitta Police Station. She divulged the incidents to the Station House Officer,

based on which, the crime was registered on 22.02.2017.

The learned counsel appearing for the petitioner submitted that, the allegation raised against the petitioner, after more than 1 1/2 decades, are

without any basis or truth. No credibility can be placed on the version of the informant. After the incident, the de facto complainant had got married

and the said marriage also ended in divorce. Thereafter, she went abroad and worked for more than three years. The version of the complainant

that, a sum of Rs.20 lakhs was demanded and obtained by the accused Nos. 2 and 3, during the period from 2007 to 2016, is difficult to believe.

If, in fact, such a large sum was obtained by threats and coercion, it cannot be expected that the de facto complainant would not have approached

the law enforcement authorities. According to the learned counsel, if the petitioner is arrested and detained in custody on the basis of these

allegations, he would be subjected to gross humiliation and ignominy.

The learned Public Prosecutor has opposed the prayer of the learned counsel. It is submitted that the delay has been properly explained and

only a meticulous investigation will bring to light the actual truth, for which the custodial interrogation of the petitioner is essential.

I have considered the submissions advanced and have gone through the case diary. The main allegation levelled against the petitioner is in

respect of an incident which took place close to 2 decades back. The de facto complainant married thereafter and had resided with her husband

for quite some time. The victim is an educated lady and was working as a nurse in Africa from the year 2003 to 2005. She herself states that she

was in dire financial straits and on more than one occasion attempted to commit suicide. Except for the solitary statement of the de facto

complainant, there is nothing to connect the accused with the crime. Moreover, the report of medical examination of the victim will not in any way

advance the case of the prosecution due to the long time lag. I find merit in the submission of the learned counsel that the arrest and detention at the

petitioner in a case of this nature will work out gross injustice. If, after investigation, the role of the petitioner is revealed, he can be tried and can be

brought to justice. However pre-trial detention is uncalled for. By imposing stringent conditions to safeguard the interest of the prosecution, I am of

the view that this petition is liable to be allowed.

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

i). The petitioner shall appear before the investigating officer within ten days from today and shall undergo interrogation. He may be subjected to all

required tests if so called for . Thereafter, if he is proposed to be arrested, he shall be released on bail on his executing a bond for a sum of

Rs.40,000/- (Rupees forty thousand only) with two solvent sureties each for the like sum.

ii)The petitioner shall co-operate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11

a.m., for one month or till final report is filed, whichever is earlier.

iii)The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to

dissuade him/ her from disclosing such facts to the court or to any police officer.

iv)The petitioner shall not commit any similar offence while on bail.

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.