BINESH Vs. STATE OF KERALA

JUDGEMENT

(1.) This petition is filed under section 438 of the Code of Criminal Procedure, 1973 by the accused in Crime No. 98 of 2018 of the Balussery Police Station registered under sections 341, 376, 323 and 506(i) of the Indian Penal Code.

(2.) According to the victim, she got married in the year 2006 to the uncle of the petitioner herein. At the time of marriage, the petitioner was studying in the 9th standard and he was residing in the same house. He continues to reside there even now. In the month of April 2017, while her husband was not at home, the petitioner approached her and demanded food. It is alleged that later in the day, the petitioner tried to embrace the victim and kiss her. She managed to dissuade him and he was told to refrain from making advances towards her, which he agreed. Though she disclosed this matter to her husband, he did not heed to her complaints. Thereafter, on 06.12.2017, while her husband was not at home, the petitioner again attempted to molest her. He is alleged to have forcefully kissed her and tried to insert his finger into her vagina. She managed to escape from the clutches of the petitioner and though she complained to her husband and mother-in-law, they ignored her lamentations. Left with no alternative, the victim left her matrimonial home on 12.12.2017 and started living with her parents. She approached the Balussery Police and lodged a complainant. However, no crime was registered. On 09.02.2018, she filed a complaint before the learned Magistrate, Perambra, on the strength of which the instant crime was registered.

(3.) The learned counsel appearing for the petitioner submitted that there are disputes between the de facto complainant and her husband and they have been residing separately for the past several months. The petitioner has been made a scapegoat in the fight between the spouses. It is further submitted that there is a long and unexplained delay in setting the law in motion. The first incident had allegedly taken place sometime in the month of April, 2017 and the second incident on 6.12.2017. The victim had left her matrimonial home on 12.12.2017 and had been staying with her parents. In spite of that, the complaint was lodged only on 9.2.2017. Except for the statement of the victim, there are absolutely no materials to corroborate her version. Even the medical evidence does not support the case of the victim. It is further submitted that if the petitioner is detained in custody for having sexually assaulted his uncle's wife, he would be subjected to gross humiliation and ignominy.