Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 26TH DAY OF JULY 2024 / 4TH SRAVANA, 1946 BAIL APPL. NO. 4260 OF 2024 CRIME NO.444/2023 OF MANNUTHY POLICE STATION, THRISSUR PETITIONER: GOPALAKRISHNAN, AGED 65 YEARS S/O. KOCHURAMAN, KOCHUKKATTIL HOUSE, VIYYAPURAM DESOM, PAYIPAD P.O., PAYIPAD VILLAGE, KARTHIKAPPILLY TALUK, ALAPPUZHA DISTRICT, PIN - 686537 BY ADVS. C.DHEERAJ RAJAN ANAND KALYANAKRISHNAN
RESPONDENT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 OTHER PRESENT: SR PP SMT SEETHA S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: -:2:- Dated this the 26th day of July, 2024
ORDER
The application is filed under Section 439 of the
Code of Criminal Procedure, 1973, by the sole accused in Crime No.444/2023 of the Mannuthy Police Station, Thrissur, which is registered against him for allegedly committing the offences punishable under Sections 376(2)(f), 376(2)(n) & 376(2)(k) of the Indian Penal Code, 1860, and Sections 6, 5j(ii), 51, 5n & 5P of the Protection of Children from Sexual Offences Act, 2012. The petitioner was arrested and remanded to judicial custody on 03.06.2023.
2. The essence of the prosecution case is that:
during Christmas Eve of 2022, the accused committed rape and penetrative sexual assault on the victim, who is none other than his granddaughter and impregnated her. Subsequently also, he raped the victim. Thus, the accused has committed the above offences. -:3:-
3. Heard; Sri. C.Dheeraj Rajan, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor.
4. The learned counsel for the petitioner
submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has committed the offences. The petitioner has treated the victim only as his granddaughter. In any given case, the petitioner has been in judicial custody for the last more than one year and one month, the investigation in the case is
complete, and the final report has been filed. Furthermore, the petitioner does not have any criminal antecedents. Therefore, the petitioner may be enlarged on bail.
5. The learned Public Prosecutor seriously opposed the application. She submitted that the -:4:-
petitioner has committed a very heinous crime by raping his granddaughter, who turned pregnant. The forensic science examination report and the DNA profiling test establish that, it is the petitioner who has committed the above offences. If the petitioner is released on bail, being the grandfather of the victim, there is every likelihood of him intimidating and influencing the victim and her witnesses and also tampering with evidence. Hence, the application may be dismissed.
6. The prosecution allegation is that the petitioner had committed rape and penetrative sexual assault on the victim, who was 17 years of age at the time of the incident, and impregnated her.
7. In Sujith v. State Of Kerala[2018(3) KHC 641], this Court after considering Section 20 of the Act has observed as follows: “14. S.29 of the Act states that where a person is prosecuted for -:5:-
committing or abetting or attempting to commit any offence under S.3, S.5, S.7 and S.9 of the Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. Therefore, the principle that an accused is presumed innocent till found guilty, will not apply to a case under S.3, S.5, S.7 and S.9 of the Act with its full rigor. The Court shall take into consideration the presumption under S.29 of the Act while dealing with an application for bail filed by a person who is accused of the offences under S.3, S.5, S.7 and S.9 of the Act (See State of Bihar v. Rajballav Prasad, 2016 KHC 6785 : AIR 2017 SC 630 : 2017 (2) SCC 178). True, a presumption in a criminal
case can arise only when the prosecution has adduced the facts
forming the foundation of the case. In the instant case, prima facie, there are sufficient materials to find the complicity of the petitioner in the crime.”
8. On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on considering the nature, seriousness and gravity of the accusations
levelled against the petitioner, the prima facie materials substantiate that petitioner has committed the above offences, though that is a matter to be ultimately decided at the time of trial, that the -:6:- petitioner has a fiduciary relationship with the victim and the reasonable apprehension projected by the prosecution that the petitioner may intimidate and influence the victim and her witnesses, I am not satisfied that the petitioner has made any satisfactory grounds to enlarge him on bail. Nonetheless, considering the fact that the petitioner has been in judicial custody for the last more than one year and is facing custodial trial, I direct the Trial Court to consider and dispose of S.C.No.968/2023 in accordance with law, as expeditiously as possible. With the above observations, the bail application is dismissed. Sd/- C.S.DIAS,JUDGE DST/26.07.24 //True copy// P.A. To Judge