XXX 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 accused in Crime No.258/2022 of Adhur Police Station, Kasaragod District alleging offences under Sections 354, 354(A)(1)(i), 376(3), 376(2)(f) and 506 of the Indian Penal Code, 1860 and Sections 4(2) r/w Section 3, Section 6(1) r/w Section 5(p), Section 10 r/w Section 9(1)(p) and Section 12 r/w Section 11(vi) of the Protection of Children from Sexual Offences Act, 2012.

According to the prosecution, the accused is the maternal uncle of the victim, aged 13 years who had assaulted her from the age of 11 onwards and on 17.03.2022 the accused indulged in sexual intercourse with her and thereby committed the offences alleged.

Smt.Hemalatha, the learned counsel for the petitioner contended that the entire prosecution case is false and that the victim had been living with her mother's sister, who is the wife of the petitioner and that the incident as alleged had never taken place. It was further pointed out by the learned counsel that the medical evidence disprove the allegation of sexual intercourse and therefore the prosecution case itself is false.

Smt.M.K.Pushpalatha, the learned Public Prosecutor opposed the grant of bail and submitted that though the petitioner was arrested on 20.03.2022, the allegations are serious in nature and that the petitioner is a person who ought to have taken care of the victim since her mother is no more and instead he had sexually assaulted her on several occasions. It was also pointed out that releasing the petitioner on bail would cause prejudice to the prosecution case even though the final report was filed and the case is pending as SC.No.296/2022 before the Sessions Court for POCSO Cases, Kasaragod.

On a perusal of the statement of the victim as well as the medical report, I notice that the Doctor had opined that there is no evidence of penetrative sexual assault. Though, the allegations are serious, since the petitioner has been in detention from 20.03.2022 onwards, I am of the view that continued detention of the petitioner is not required. Therefore, the petitioner is entitled to be released on bail.

In the result, this application is allowed 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 co-operate with the trial of the case.

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

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

(e) Petitioner shall not leave the country without the permission of the jurisdictional Court.

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.