Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942 Bail Appl..No.9163 OF 2020 CRIME NO.187/2018 OF Ambalavayal Police Station, Wayanad PETITIONER/ACCUSED: BINU K.B AGED 28 YEARS KOTTAKOLLY COLONY, MANALVAYAL POST, SULTHANBATHERY TALUK, WAYANAD DISTRICT BY ADVS. SRI.AJWIN P LALSON SRI.SABU THOZHUPPADAN RESPONDENT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA R1 BY PUBLIC PROSECUTOR OTHER PRESENT: C.N.PRABHAKARAN- SR.P.P THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21.01.2021, THE COURT ON 27.01.2021 PASSED THE FOLLOWING:
ORDER
Dated this the 27th day of January 2021
The petitioner is the sole accused in Crime No. 187 of 2018 of Ambalavayal Police Station registered for the offences punishable under Sections 376(2), (f), (l), (n) of the Indian Penal Code and Section 6 read with Section 5(j)(ii), (l) and (n) of the Protection of Children from Sexual Offences Act. He has filed this application seeking his release on bail.
2. The petitioner has been in custody since 22.04.2020.
3. The prosecution allegation is as
follows: The victim is a girl aged 14 years. She is the sister of the wife of the petitioner. The petitioner has committed repeated rape/aggravated penetrative sexual assault on the victim and impregnated her and thereby committed the aforesaid offences.
4. The learned counsel for the petitioner
would submit that the petitioner is totally innocent of the allegations levelled against him, but he has been languishing in jail for the last seven months and hence he seek for his release on bail.
5. On the other hand, the learned Public
Prosecutor has vehemently opposed the application and contended that there is strong evidence against this petitioner and prosecution has collected all incriminating evidences against this petitioner including conduct of DNA test to prove that he impregnated the victim by committing repeated rape on her. Now the investigation has been completed and charge sheet has been filed before the court on 10.07.2020 and the case is pending before the Special Court as S.C. No. 184 of 2020. The court below has considered the bail application filed even after filing of the charge sheet and dismissed the same as early as on 16th September, 2020.
6. Admittedly, the petitioner is a close
relative of the victim who is a minor girl. That be so, there is every possibility to intimidate her and thus to interfere with the trial of the case. She is presently residing with her sister at her parental house where the petitioner could get free access if released on bail. So, the possibility to intimidate her so as to depose falsehood before the court cannot be ruled out. It is for the trial court to decide whether custodial trial of the petitioner is required or not after assessing the entire circumstances involved in the case. If the court feels that it is not safe to release him on bail and custodial trial is required, he cannot be released on bail till termination of trial. But if the court finds it otherwise then his application, can be disposed of allowing his release on bail. Therefore, whether custodial trial is required in the case especially when the victim is a close relative of the petitioner, is a matter to be assessed and decided by the trial court. Such being the case, I find that this application for bail is only to be dismissed by this court with liberty to the petitioner to move before the trial court for his release on bail, if so advised.
Sd/- SHIRCY V. JUDGE sb