ELDO Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Crime No.1766/2019 of Angamaly Police Station, Ernakulam, registered for offences punishable under Secs.376, 354 and 506 of the Indian Penal Code. The said crime has been registered on the basis of the First Information Statement given by the lady de facto complainant on 23.10.2019 at about 10.30 p.m., in respect of the alleged incidents which happened on 25.09.2018 and thereafter. The petitioner has been arrested in this case on 24.10.2019 and after his remand, has been under detention since then. The brief of the prosecution case is that the petitioner/accused aged 44 years is a married man and that he is a close friend of the husband of the lady de facto complainant aged 44 years and that both are attending the same church and that the petitioner/accused was on very friendly terms with the lady's husband in relation to certain activities of the church and that he had also availed a personal loan of Rs.7 lakhs from the lady's husband and that he thus got very friendly with the lady also and that on 25.09.2018, he had forcibly taken her away in a Bolero jeep/car and had taken her to a flat, where he had forcible sexual intercourse with her and later he used to frequently telephoned her and intimidated and threatened her that he would kill her, if she divulge this incident and later, he picked up quarrel even with the lady's husband and when the threats became incessant, she had no other opportunity, but to report the said incident, etc .

(2.) Sri. Krishnadas P.Nair, the learned counsel for the petitioner/accused would urge that the aforesaid allegations are false and baseless and further that a proper and intelligent reading of the impugned First Information Statement in this case would make it clear like the day light that if the incident narrated herein are broadly true, then the same could have happened only on the basis of consensual sexual relationship between the parties and not otherwise and therefore, none of the vital impugns of the offence under Section 375 of the IPC are made out in this case. Further that the alleged incident of sexual intercourse is a solitary one and it is said to have happened as early as on 25.09.2018, whereas the FIS and the crime have been lodged only as late as on 23.10.2019 and the long delay of 14 months is not even properly explained by the prosecution agency in any manner and the said long unexplained delay would fatally vitiate the impugned criminal proceedings as the very credibility and believability of version of the prosecution in this case. The learned Public Prosecutor would urge that the above said lady de facto complainant has given her version that after the main incident which happened on 25.09.2018, the petitioner used to frequently intimidate and threaten her and that out of fear and shame, she could not report the incident to anyone and only when the threats from the part of the petitioner she incessant, she had no other option but to report the incident. Further that there is every strong possibility the petitioner intimidating the witnesses, more particularly, the lady de facto complainant and her husband and other family members if he is let out of bail going by the conduct of the petitioner as narrated in the instant prosecution case. Further that the investigation has not been completed etc. Counsel for the petitioner has also relied on various rulings of the Apex Court and various High Court including this Court which has laid down the substantial and vital distinction between rape and consensual sexual intercourse between the parties, then it has been held that where a man and a woman are having an affair for quite sometime then it is very difficult to make out the case of rape, etc.

(3.) After hearing both sides and after careful evaluation of the facts and circumstances of this case, and also taking into account the facts that there is long delay of about 14 months in reporting about the incident which has initially happened as early as on 25.09.2018, and also taking note of the fact that the petitioner has already undergone continuous detention for the last 34 days etc, this Court is inclined to take a view that further incarceration could be avoided and that he could be released on regular bail subject to stringent conditions. However taking note of the serious apprehension raised by the prosecution about the strong possibility of the petitioner intimidating and influencing the witnesses more particularly the lady victim, it is ordered as a safeguard that petitioner shall not enter into or reside anywhere within the limits of the District were the defacto complainant and her family members are residing until the conclusion of the trial process subject to certain exceptions which will be dealt with hereinafter.