XXXXXX vs State Of Kerala

Dr. Kauser Edappagath, J

This application is filed u/s 439 of the Code of Criminal Procedure seeking regular bail.

The applicant is the accused in S.C No.1160/2022 on the file of Special Judge, Fast Track Special Court, Chavakkad. The offences alleged are punishable under Sections 3(a) r/w 4(1), 5(j) (ii) r/w 6, 5(n) r/w 6, 11(iv) r/w 12 of POCSO Act and Sections 354D(l)(ii) r/w 354D(2), 450, 376(2)(f), 354 of the Indian Penal Code.

The prosecution case, in short, is that the applicant who is the close relative of the victim, aged 17 years, had sexual intercourse with her on 8.7.2020 between 4 a.m. and 6 a.m. after giving her false promise of marriage. Later, the applicant withdrew from the marriage.

I have heard Sri.V.V Roy, the learned counsel for the applicant and Sri.Hrithwik C.S, the learned Senior Public Prosecutor. Perused the case diary.

The learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present case. The counsel further submitted that no materials are on record to connect the applicant with the alleged crime; hence, he is entitled to get bail. On the other hand, the learned Public Prosecutor submitted that the alleged incident occurred as a part of the intentional criminal acts of the applicant, and he is not entitled to bail at this stage.

The applicant was remanded to judicial custody on 5.3.2023. The applicant is a close relative of the victim. The crime was registered based on the statement given by the victim. I have gone through the statement. There is absolutely no allegation against the applicant in the FIS. The allegation is that on a day in the year 2020 at 2.00 O’ clock, a stranger came to her house and forcefully committed rape on her against her consent. During the investigation, the victim gave a further statement stating that she was in love with the applicant and on 8.7.2020 between 4 a.m and 6 a.m. they had sexual intercourse. Even going by the additional statement, the alleged sexual act was consensual in nature. That apart, as stated already, there are two different version in the FIS as well as in the additional statement. The investigation is already over and final report has already been filed. For all these reasons, I do not find any reason to hold that the continued detention of the applicant is required for any purpose. Hence, the applicant is entitled to be released on bail.

In the result, the application is allowed on the following conditions: -

(i) The applicant shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Magistrate/Court.

(ii) The applicant shall not commit any offence of a like nature while on bail.

(iii) The applicant shall not attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

(iv) The applicant shall not leave the State of Kerala without the permission of the trial Court.

(v) The application, if any, for deletion/modification of the bail conditions or cancellation of bail on the grounds of violating the bail conditions shall be filed at the jurisdictional court.