BIJU Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein is the 1st accused in Crime No. 1101 of 2014 of Kadackal Police Station, Kottarakkara for offences under Secs. 450 and 376 of IPC. The petitioner has preferred this application for regular bail under Sec. 439 of the Cr.P.C.

(2.) Heard the learned counsel for the petitioner Sri. Alexander George and the learned Public Prosecutor appearing for the respondents.

(3.) The petitioner would submit that the defacto complainant had earlier given information to the Kadackal Police Station alleging offences under Sections 450 and 376 of IPC against the petitioner in respect of an incident alleged to have occurred on 12.8.2009 and that this led to registration of Crime No. 633 of 2009 of Kadackal Police Station against the petitioner for the above said offences. The said proceedings are now pending as Sessions Case No. 402 of 2011 on the file of the Assistant Sessions Court, Kottarakkara. While so, the defacto complainant had preferred yet another petition for maintenance before the Family Court, as per Annexure No. 1 herein, on 16.7.2013, claiming that she and the petitioner herein were living like man and wife, though not formally married, and that the petitioner had deserted her and that through that relationship, the defacto complainant has a daughter aged four years, who has allegedly been fathered by the petitioner herein. According to the petitioner, the mother had preferred a complaint to the police authorities as evidenced by Annexure No. II on 18.7.2014 alleging offence under Sec. 318 of the IPC against the defacto complainant herein. This led to registration of Crime No. 1055 of 2014 of Kadackal Police Station for offence under Sec. 318 of IPC, in which, the defacto complainant herein is the accused. It is thereafter that the defacto complainant herein had submitted another petition before the police authorities alleging offences under Sections 415 and 376 against the petitioner herein and another person, which led to the registration of the instant crime No. 1101 of 2014 of Kadackal Police Station for the above said offences. The petitioner was arrested on 27.7.2014 and his regular bail application has been rejected by the court below as well as by this Court previously. The main thrust of the arguments advanced by Sri. Alexander George, the learned counsel for the petitioner herein, is that even according to the version projected by the defacto complainant, she was on intimate relationship earlier with the petitioner and that the present crime has been triggered against the petitioner to retaliate against Annexure No. II complaint filed by his mother against the said defacto complainant herein, which led to registration of Crime No. 1055 of 2014 of Kadackal Police Station for offences under Sec. 318 of IPC, in which, the defacto complainant herein is the accused. The learned counsel for the petitioner further strongly urged that the version projected by the prosecution that the petitioner had asked the defacto complainant to meet him with the child at the forest under the pretext that he wants to see the child and had again subjected her to sexual intercourse, is absolutely preposterous and unbelievable, because both of them are living apart and many cases are pending between them before the courts and authorities concerned. Moreover, when the specific case of the defacto complainant is that the petitioner herein had allegedly raped her in a previous case which has now led to the pending Sessions Case No. 402/2011 before the Assistant Sessions Court, Kottarakkara, then such a prosecutrix would never again be induced to go and meet the accused, that too, in a forest area. Moreover, if the petitioner wanted to see the child, then the defacto complainant could have insisted that such visitation of the child should be either through the pending Family Courts proceedings as in Annexure I or in the presence of family members or friends of either parties. Therefore, it is urged very strongly by the learned counsel for the petitioner that the aforementioned version of the petitioner having induced her to come to the forest area, is unbelievable and incredible.