FASALU P.P. @ FAISAL Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner herein is the 64th accused in Crime No.549 of 2011 of Varapuzha Police Station for offences punishable under sections 354, 366A, 372, 373, 376, 109 r/w 34 of the Indian Penal Code.

(2.) The third respondent herein is stated to be the victim in the above crime. It was alleged by the prosecution that, victim who is aged 22 years now, was enticed by the main accused who enabled several persons to commit rape on her. It was alleged that the petitioner herein had committed rape of the girl at Bangalore. Ext.P2 is the report dated 21.07.2012 filed by the second respondent before the Judicial First Class Magistrate Court, North Paravur, adding the petitioner herein as accused No.64. Investigation commenced against the petitioner herein and apprehending arrest, he sought for anticipatory bail by filing Ext.P3.

(3.) Petitioner herein has approached this Court contending that, he has been added as an additional accused on the basis of a misunderstanding and on the basis of mistaken identity. According to the petitioner, the allegation that the victim was raped by him some time in July 2011 at Bangalore, is incorrect. He was conducting business abroad. He hails from a respectable family and has not committed any such act, as alleged. Pursuant to the direction of this Court by Ext.P3 order in Crl.M.C.No.5611 of 2016, a test identification parade was conducted involving the petitioner herein, but the defacto complainant could not identify the petitioner herein from among the persons who were shown to her on that day. It was also stated that the third respondent had filed a counter affidavit, wherein, she has affirmed that the petitioner herein is not known to her and that, she had no acquaintance with the petitioner herein. She has asserted that the petitioner herein has never committed any sexual assault on her nor has she given a statement before the investigating officer incriminating the petitioner. It was also averred that, in the test identification parade, there was nobody familiar for her to identify and she could not identify any person shown to her. None of the persons present in the test identification parade had sexually abused her. It was vehemently contended by the learned counsel for the petitioner herein that, the vague allegation referring to him is only that, one person from Guruvayoor had sexually abused the girl at Bangalore. It was stated by the petitioner that he was sought to be roped in with the aid of the confession statement of one of the co-accused. In the light of the test identification, petitioner was not identified and in the light of the affidavit affirming that, victim has no case against the petitioner herein, the criminal prosecution is liable to be quashed, itwas contended. It was also stated that, according to the materials collected by the police, one person from Guruvayoor is referred by physical description alone and that does not tally with the physical description of the petitioner herein. Learned counsel for the third respondent reiterated that, according to the victim, petitioner herein was not among the persons who had raped her.