AMAL SIVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has now been arrayed as accused No.1 in the instant Annexure A2 crime No. 1299/2019 of Piravom Police Station which has been registered for offences punishable under section 363, 376(2)(l) and section 34 of the IPC on the basis of the First Information Statement given by the lady defacto complainant on 30/09/2019 at about 9 pm in respect of the alleged incidents which happened on a day in May, 2019 at about 10 am. The petitioner has been arrested in this case on 14/09/2019 and after his remand, has been under judicial custody since then.

(2.) The counsel for the petitioner would point out that the above said allegations are false and baseless and further that, as a matter of fact, on the basis of the complaint/FI Statement given by the very same victim, earlier yet another crime, crime No. 1296/2019 of Piravom Police Station has been registered as per Annexure A1 against the petitioner for offences punishable under section 376(2)(l) of the IPC on the basis of the First Information Statement given by the very same lady victim on 12/09/2019 at about 5.15 pm in respect of incidents which were said to have happened on 11/09/2019 at about 10 pm in the night. It appears that the case of the Prosecution is that the date of birth of the lady defacto complainant is 19/01/1999 and that she has already completed the majority age of 18 years on 19/01/2017 and she was of the age 20 years plus at the time of the alleged incidents which happened on May, 2019. Further that Prosecution also has a case that the lady defacto complainant is suffering from 45% mental disability which she also admits in the instant Annexure A2 FI Statement. It is pointed out by the petitioner's counsel that in Annexure A1 FIS dated 12/09/2019, the lady victim would allege that she got acquainted with the petitioner some time in May 2019 and that on 11/09/2019 he had gone to the terrace of her residence at about 8.30 pm and asked her to come there and had forcible sexual intercourse with her at that time and that he had assured her that he would marry her. It appears that the Police after investigation in Annexure A1 crime No. 1296/2019 of Piravom Police Station found that the allegations of rape against the petitioner in the said crime No. 1296/2019 are false and when the victim was again questioned, she has candidly told them that the allegation of rape raised against the petitioner in Annexure A1 crime No. 1296/2019 of Piravom Police Station on the basis of the FI Statement dated 12/09/2019 given by her in that case are false and baseless and that as a matter of fact two other persons have committed sexual intercourse with her. The Police instead of referring Annexure A1 crime No. 1296/2019 as false, has taken steps to file an additional report before the jurisdictional Magistrate's Court concerned stating that the allegations against the petitioner are false and baseless and that he has thus been removed from the accused array and two other persons have been arrayed as accused in the said Annexure A1 crime, both in respect of the new incidents alleged by her.

(3.) Further the Counsel for the petitioner would point out that thereafter the present impugned instant Annexure A2 FIS had been given by the very same lady victim on 30/09/2019 raising a new allegation that petitioner had befriended her and that 0n a day in May, 2019 he had taken her in his car which was driven by another person, to a mountain in Piravamadom and there the petitioner had forcible sexual intercourse with her. On the basis of Annexure A1 FI Statement dated 12/09/2019, the present Annexure A2 FIR No. 1299/2019 of Piravom Police Station had been registered for offences punishable under Section 376, 376(2)(l) and Section 34 of the IPC on 30/09/2019 at about 9.10 pm in respect of the alleged incidents which happened on a day in May 2019 at about 10 am in which the petitioner has been arrayed as accused No. 1 and the person who has allegedly driven the car has been arrayed as accused NO. 2. The counsel for the petitioner would point out that it is the indisputable and admitted case of the Prosecution that the earlier allegation made by the victim against the petitioner regarding the rape offence which is subject matter of Annexure A1 crime NO. 1296/2019 of Piravom Police Station are absolutely false and baseless and that it is some other persons who had committed rape on her. Hence it is urged by the petitioner's counsel that the very credibility and believability of the Prosecutrix regarding her new allegations and that too raised within a span of 24 hours on the next day (30/09/2019) which led to the registration of instant Annexure A2 crime No.1299/2019 of Piravom Police Station should be viewed with great circumspection and caution as it raises serious doubts and suspicion about the very credibility and believability of the Prosecution.