Alphonsa, vs State of Kerala,

Type Court Judgment Court Kerala Orders Decided Jun 01, 2023

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Citation: sooperkanoon.com/1355591
Court: Kerala Orders High Court
Judge: Honourable Mr.Justice Ziyad Rahman a.a.
Decided On: Jun 01, 2023
Case Number: Bail Appl./3071/2023

Parties & Advocates

Appellant / Petitioner

Alphonsa,

Respondent

State of Kerala,

Excerpt

.....and sri.ramesh p., learned counsel for the 3 rd respondent. b.a.no.3071/23 34. the learned counsel for the petitioner submits that theallegations raised against the petitioner are highly improbable, and the same was made at the instance of the de facto complainant, the mother of the victim, consequent to certain personal rivalry between the parties. according to him, the petitioner is a lady aged 51 years with two daughters. the de facto complainant/mother of the victim was having some enmity with the petitioner as the petitioner questioned the immoral life of the de facto complainant, and the false complaint was submitted consequent to the same. therefore the petitioner seeks anticipatory bail.5. on the other hand, the learned public prosecutor andthe learned counsel for the de facto complainant opposed the aforesaid allegation. it is pointed out that the victim in this case is a girl child aged four years, and she has given specific details of the sexual assaults committed before the police and before the learned magistrate under section 164 of the cr.p.c. it is also pointed out that subsequently, counselling of the survivor was conducted with the help of a clinical psychologist at nimhans, and after completing the clinical sessions, the clinical psychologist b.a.no.3071/23 4 also submitted a report confirming the sexual assault. in such circumstances, it is pointed out that custodial interrogation of the petitioner is required, and therefore, anticipatory bail cannot be granted.6. i have gone through the records and heard thecontentions of both sides. in the victim's statement given before the police and before the learned magistrate under section 164 cr.p.c., the survivor mentioned the specific instances of sexual assault. the manner in which such sexual assault was committed is also explicitly mentioned therein, which includes the allegation that the child was made to suck the vagina of the petitioner. besides the same, as per the report of the.....

Full Judgment

B.A.No.3071/23 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 1ST DAY OF JUNE 2023 / 11TH JYAISHTA, 1945 BAIL APPL. NO. 3071 OF 2023 PETITIONER/ACCUSED: XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADV.SHEJI P.ABRAHAM RESPONDENTS/COMPLAINANT/STATE: 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. 2 STATION HOUSE OFFICER, THIRUVAMBADY POLICE STATION, KOZHIKODE, PIN - 673 582. 3 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADV.Ramesh P ADV.SEETHA S - SR.PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.3071/23 2

ORDER

The petitioner is the accused in Crime No.100 of 2023, registered by Thiruvambady Police Station. The offences alleged against the petitioner are under Sections 4(2), 3(d), 6(1), 5m, 12, 11(i) of the POCSO Act and Section 3(l)(w)(i), 3(l),(w),(ii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Amendment 2015) r/w Section 509 IPC.

2. The prosecution case is that the victim was sexually

abused by the petitioner on a day after 1 st March 2023. The aforesaid sexual assault happened to be revealed by the victim during her interaction with her mother on 13.03.2023, and a complaint in this regard was submitted by the mother of the victim on 23.03.2023. The crime was registered accordingly, and this application for anticipatory bail is submitted by the petitioner as she apprehends arrest in connection with the investigation of the same.

3. Heard Sri.Sheji P.Abraham, learned counsel for the petitioner and Smt.Seetha S., learned Public Prosecutor for the State and Sri.Ramesh P., learned counsel for the 3 rd respondent. B.A.No.3071/23 3

4. The learned counsel for the petitioner submits that the

allegations raised against the petitioner are highly improbable, and the same was made at the instance of the de facto complainant, the mother of the victim, consequent to certain personal rivalry between the parties. According to him, the petitioner is a lady aged 51 years with two daughters. The de facto complainant/mother of the victim was having some enmity with the petitioner as the petitioner questioned the immoral life of the de facto complainant, and the false complaint was submitted consequent to the same. Therefore the petitioner seeks anticipatory bail.

5. On the other hand, the learned Public Prosecutor and

the learned counsel for the de facto complainant opposed the aforesaid allegation. It is pointed out that the victim in this case is a girl child aged four years, and she has given specific details of the sexual assaults committed before the Police and before the learned Magistrate under section 164 of the Cr.P.C. It is also pointed out that subsequently, counselling of the survivor was conducted with the help of a Clinical Psychologist at NIMHANS, and after completing the clinical sessions, the Clinical Psychologist B.A.No.3071/23 4 also submitted a report confirming the sexual assault. In such circumstances, it is pointed out that custodial interrogation of the petitioner is required, and therefore, anticipatory bail cannot be granted.

6. I have gone through the records and heard the

contentions of both sides. In the victim's statement given before the Police and before the learned Magistrate under Section 164 Cr.P.C., the survivor mentioned the specific instances of sexual assault. The manner in which such sexual assault was committed is also explicitly mentioned therein, which includes the allegation that the child was made to suck the vagina of the petitioner. Besides the same, as per the report of the investigation officer made available before this Court, the survivor was subjected to examination by a Clinical Psychologist, and the report of the clinical psychologist also would substantiate the sexual assault. In the report, it is specifically mentioned that multiple sessions of counselling were conducted, and in all the sessions, the sexual assault was clearly described by the child. In such circumstances, I am of the view that, taking into account the serious nature of the allegations, the prayer sought by the petitioner cannot be

B.A.No.3071/23 5

entertained. Even though the learned counsel for the petitioner highlights the personal rivalry between the mother of the survivor and the petitioner as a reason for submitting the false complaint, going through the nature of the allegations and the materials produced before me, including the statement of the victim before the Police, the learned Magistrate and the Clinical Psychologist, I am of the view that the said contention cannot be accepted as such. Hence, I am of the view that custodial interrogation of the petitioner may be required.

In such circumstances, I am not inclined to grant anticipatory bail to the petitioner herein. Accordingly, this application is dismissed. Sd/- ZIYAD RAHMAN A.A. JUDGE DG/3.6.23

Same Court & Year Kerala Orders · 2023 Same Parties Alphonsa, vs State of Kerala, Same Judge Honourable Mr.Justice Ziyad Rahman a.a.