XXX vs State Of Kerala

A. Badharudeen, J.

This is an appeal filed under Section 14A(2) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 2015 (hereinafter referred to as `SC/ST Act' for convenience). The appellant is the accused in Crime No.942/2022 of Thodupuzha Police Station, where the accused/appellant alleged to have committed offences punishable under Sections 376(1) of the Indian Penal Code, 1860 and Sections 3(1)(w)(i) and 3(2)(v) of the SC/ST Act.

Though notice was served upon the defacto complainant as mandated under Section 15-A(3) of the SC/ST Act, the defacto complainant did not turn up.

Heard the learned counsel for the appellant as well as the learned Public Prosecutor.

Short facts : The allegation against the appellant herein is that on 25.09.2022 when the defacto complainant, who is a member of Scheduled Caste community, reached her native place after completing her M.Sc Course in U.K, the accused, who does not belong to SC/ST community, who had developed a relationship with the defacto complainant, taken her in a car and thereafter subjected her to rape inside the car, on the promise of marriage. This is the premise on which the prosecution alleges commission of the above offences.

While canvassing regular bail to the appellant, who has been in custody from 16.10.2022, the learned counsel for the appellant submitted that the sexual intercourse alleged to be in between the complainant and the accused, if any, is the outcome of consent, as can be read out from the F.I statement as well as the additional statement. He would submit further that the promise of marriage alleged by the defacto complainant could not be believed for a moment for the reason that, admittedly, the defacto complainant is a married lady having 3 children. According to the learned counsel for the appellant, since the relationship got strained, false case has been foisted against the appellant by the defacto complainant alleging rape. Highlighting anomaly in the prosecution case in this way, and also pointing out the progress of investigation and the custody of the petitioner for a period of 50 days, the learned counsel for the appellant pressed for regular bail.

The learned Public Prosecutor supported the prosecution case and the order impugned.

On perusal of the F.I statement as well as additional statement, though it has been alleged by the defacto complainant that she was subjected to rape on promise of marriage, the statement would suggest that the defacto complainant is a married lady having 3 children and the defacto complainant and the accused maintained the relationship for a period of 6 years prior to the occurrence. No doubt, the allegation of rape and the defence case of consensual sexual intercourse etc. are matters of investigation and evidence and I am not inclined to comment on the said aspects at this stage.

However, the accused has been in custody for the last 50 days and his custody for the purpose of investigation appears to have practically over. Further he has no criminal antecedents also. Therefore, further custody of the petitioner is not required for any purpose. Accordingly, the order impugned stands set aside and the appeal stands allowed on the following conditions:

i) The appellant/accused shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the Special Court concerned;

ii) The appellant/accused shall not intimidate witnesses or tamper the evidence. He shall co-operate with trial and shall be available for trial;

iii) The appellant/accused shall not leave the jurisdiction of the Special Court without prior permission of the court;

iv) The appellant/accused shall not involve in any other offence during the currency of bail and any such event, if reported to came to the notice of this Court, the same shall be a reason to cancel the bail hereby granted.

The accused/appellant shall not disturb the defacto complainant in any manner hereafter, and any such event, if reported, or comes to the knowledge of this Court, the same is a reason to cancel the bail hereby granted.