VISHNU RAJ vs STATE OF KERALA

This petition is filed under Section 439 of the Code of Criminal Procedure.

The petitioner herein is the accused in Crime No.821 of 2017 of the Kumbala Police Station, registered under Sections 366, 344, 376(i)(n)(m)

of the IPC and Section 5(1)(p) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The aforesaid Crime was registered on the basis of information furnished by a minor girl, who was aged 15 years as on December, 2017.

According to the victim, the petitioner herein is the husband of her elder sister. The marriage between the petitioner and her elder sister was

solemnised about 2 1/2 years back. They have a child aged 1 1/2 years in the wedlock. After marriage, the petitioner and his wife stayed briefly in

the home of the wife for about two months. According to the victim, while the petitioner was residing as aforesaid, he subjected the victim to sexual

abuse. Her sister came to know about the incident and she picked up a fight with the petitioner. Thereafter, due to disputes with the mother-in-law,

the petitioner and his wife started residing in a rental house. It is further alleged that about two years prior to December, 2017, the victim was sent

to Kollam by the petitioner herein. The victim was informed that the petitioner would join her later. She was told that a lady would pick her up as

and when she reaches at Kollam. She went to Kollam and she met a lady by name Sanija mol. She resided with the lady for about a week. Sanija

mol is alleged to have told the victim that she is the wife of the petitioner herein. The victim then disclosed to the lady that she was sexually abused

by the petitioner herein. The victim was immediately sent back to Kasaragod. When she reached Kasaragod, she was taken around by the

petitioner in a bike and was taken home later in the evening. The victim then resided with her sister and the petitioner for several days at their

rented premises. During this period, the petitioner is alleged to have subjected the victim to sexual abuse. It is on these allegations that the aforesaid

Crime was registered. After registration of the Crime additional statement of the victim was recorded and she gave more details of sexual abuse to

which she was subjected to. It was stated that she was confined in the rented house by the petitioner who was staying there with his wife and on

repeated occasions the victim was subjected to sexual abuse.

The learned counsel appearing for the petitioner submitted that there is not even a semblance of truth in the allegations levelled against him. It

was submitted that the petitioner was doing business in the sale and distribution of household articles and electronic items at Kasargod. The father

of the victim was his employee. He had also employed a lady by name Akhila, who was from Kollam, which is the native place of the petitioner.

The aforesaid lady was a married woman and the mother of two children. Alleging that she was confined in a building, which belonged to one

Esuddin at Kasargod from 24.10.2017 too 10.12.2017 and that she was subjected to sexual abuse, a Crime was was registered as Crime

No.1688 of 2017 of the East Kallada Police Station. The petitioner was arrested in the said case and he underwent incarceration for over 55

days. Later he was enlarged on bail by the Court of Session, Kollam, on 7.2.2018, in Crl M.C. No.162 of 2018 .

The victim in the instant case also alleges that she was confined in the same rented house along with her sister and she was subjected to sexual

abuse. According to the learned counsel, the father of the victim, taking cue from the registration of the crime against the petitioner at the East

Kallada Police Station, has persuaded the victim to level false allegations against him. The learned counsel further submitted that the allegation that

he has married the sister of the victim and he was residing with her is also untrue. Taking this Court through the FI statement, the additional

statement and the 164 statement of the victim it was submitted that the victim has been developing her version to aggravate the allegations against

the petitioner It is finally submitted that though it is specifically alleged that the petitioner had committed penetrative sexual assault on the victim on

numerous occasions in the 164 statement and the additional statement, the victim had refused to be examined by the doctor when she was

produced before her. This, according to the learned counsel, is sufficient enough reason to doubt the credibility of the statement of the victim.

Furthermore it was submitted that the petitioner was arrested in connection with Crime No.1688 of 2017 of the East Kallada Police Station and

while he was undergoing incarceration, his formal arrest was recorded in the instant case on 8.1.2018.

The learned public prosecutor has opposed the prayer. It was submitted that the allegations levelled against the petitioner are very grave. It was

however submitted that the victim was produced before K. Bindu, Medical Officer, Government General Hospital, Kasargod on 16.12.2017 but

the victim has refused to be medically examined.

I have considered the submissions. The specific case of the petitioner is that he has not sexually abused the victim child and that the allegations

are untrue. In her 164 statement before the learned Magistrate, the victim has stated that she was subjected to penetrative sexual assault and that

too on repeated occasions. The refusal of the victim to submit herself to medical examination, will definitely throw seeds of doubt on her version,

particularly, when the accused asserts that the allegations are untrue. The petitioner has been in custody from 14.12.2017 in connection with the

earlier crime and the arrest in the instant case has been recorded on 8.1.2018. It appears from the case diary that all the material witnesses have

been questioned and his potency test has been conducted. Further detention of the petitioner in the instant case does not appear to be warranted.

He can now be granted bail by imposing stringent conditions.

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

1). The petitioner shall be released on bail on his executing a bond for a sum of Rs. 50,000/- (Rupees Fifty thousand only) with two solvent

sureties each for the like sum to the satisfaction of the court having jurisdiction.

2).The petitioner shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for 2 months or till final report is filed,

whichever is earlier.

3). The petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence. He shall not make any attempt to

contact the victim or her family members.

4). The petitioner shall not enter the limits of Kumbla Police Station except for complying with the conditions of this order.

5). The petitioner shall not commit any offence while he is on bail. The petitioner shall surrender his passport before the court below or if he does

not have one, he shall file an affidavit to that effect within five days of his release. Application for release of the passport, if any, shall be considered

by the Trial court at the appropriate stage.

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.