Dini Elizabeth Daniel vs State Of Kerala

Bechu Kurian Thomas, J.

Petitioner is a lady who apprehends arrest in Crime No.6 of 2020 of Panangad Police Station, Ernakulam. She is arrayed as the second accused in the aforesaid crime. She therefore seeks anticipatory bail.

The allegations against the accused are punishable under sections 376, 506 r/w section 34 of the Indian Penal Code, 1860, apart from sections 3, 4, 6, 7, 11, 12, 16 and 17 of the Protection of Children from Sexual Offences Act, 2012.

According to the prosecution, the first accused, with intent to commit penetrative sexual assault on the 17 year old victim, took her nude photos on the mobile phone while she was sleeping on a day in the month of April 2019, and after she woke up, forced her into penetrative sexual assault and thus committed rape on her. The first accused is alleged to have committed penetrative sexual assault once again in the month of May, 2109. The petitioner is alleged to have aided the commission of rape, by failing to divulge the same to any person even after becoming aware of the commission of the offence.

Sri. Basil Chandy Vavachan, learned counsel for the petitioner contended that the prosecution case against the petitioner is totally false. It was pointed out that the petitioner had no information or knowledge about any instance of rape and therefore, she has been roped in without any basis. The learned counsel also pointed out that even the statement given by the victim relating to the nature of the relationship between the petitioner and the first accused is baseless as they are not husband and wife and that both of them are married to other persons. The counsel also pointed out that the petitioner, the first accused and the victim, along with the victim's mother, were all very close friends and that they even had a WhatsApp chat group amongst themselves. The learned Counsel submitted that a glance at the messages in the chat group produced as Annexure 11, Annexure 12 and Annexure 13 would indicate the nature of their relationship and also that the allegations against the petitioner are false. The learned Counsel pointed out that the allegations are raised due to the fallout of certain financial transactions between the victim's mother and the first accused. In any event, it was submitted that the petitioner is willing to abide by any conditions and that in the nature of the allegations raised against the petitioner, custodial interrogation is not essential.

Sri.K.A.Noushad, the learned Public Prosecutor, contended that the petitioner is alleged to be involved in a serious offence and that custodial interrogation is essential. It was further pointed out that as per the allegations, petitioner was aware of the commission of the offence, and therefore, she has got direct involvement in the crime.

Smt.Sadhana Kumari Eswari, the learned counsel appearing on behalf of the victim, vehemently contended that the prosecution case is true and that the victim was subjected to penetrative sexual assault by the first accused while the second accused was fully aware of the crime and she failed to divulge to anyone the commission of rape on the victim, by the first accused. Though the existence of the WhatsApp group among the accused, the victim and her mother were admitted, it was pointed out that the messages by themselves cannot be reflective of the absence of the commission of rape, especially since they were inserted by the petitioner herself, using the victim's phone. Non-mentioning of the commission of rape in the messages cannot be assumed to be indicative of an absence of rape, contended the learned Counsel.

I have considered the rival contentions and have perused the documents produced. The copy of the WhatsApp messages produced by the parties were also perused.

The allegation against the petitioner is that despite knowledge of the commission of the offence of rape by the first accused, she did not divulge the same to anybody and, on the other hand, aided its commission. While appreciating the contentions of the learned counsel for the petitioner as well as the respondents, I notice from the records produced that a writ petition was filed by the petitioner as W.P(C) No.7496 of 2021, seeking a direction to entrust the investigation of this crime to an impartial special investigation team. In the said case, the police had filed a statement before this Court (produced as Annexure 6) stating that there were no financial transactions between the first accused and the mother of the victim. However, documents produced by the petitioner and admitted in the objection of the victim indicate that there were financial transactions between the first accused and the victim's mother.

Apart from the above, a glance at the WhastApp chats between the petitioner, the first accused, the victim and her mother, between whom a group was created with the name 'BeeDi', show communications between the group members even during the month of May 2019, which is after the alleged date of offence. A glance at those communications, prima facie, does not reveal any knowledge on the petitioner about the commission of any offence on the victim. The victim's WhatsApp chats under the admitted name 'Drama Queen' also do not indicate or convey any offence committed by the petitioner or as being a party to the commission of any such offence. Though the victim contends that the messages sent under her name were actually sent by the petitioner herself using the victim's phone, I am of the prima facie view that those messages are seen to have emanated from the phone of the victim herself.

On an appreciation of the records and the argument of the learned counsel, I am of the view that the custodial interrogation of the petitioner can be effected with limited custody as contemplated by the decision in Sushila Aggarwal and Others v. State (NCT of Delhi) and Another [(2020) 5 SCC 1].

Accordingly, this application is allowed on the following conditions:

(a) Petitioner shall surrender before the Investigating Officer and subject herself to interrogation from 9 a.m. to 6 p.m on 16.08.2022 and 17.08.2022. If the interrogation is not completed within those days, the petitioner shall appear before the Investigating Officer on the subsequent days also as may be directed by the Investigating Officer, but within the time mentioned above.

(b) If, after interrogation, the Investigating Officer proposes to arrest the petitioner, then she shall be released on bail on her executing a bond for Rs.50,000/- with two solvent sureties each for the like sum to the satisfaction of the Investigation Officer.

(c) Petitioner shall appear before the Investigating Officer as and when required and shall also co-operate with the investigation.

(d) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall she tamper with the evidence or contact the victim or her family members.

(e) Petitioner shall not commit any similar offences while she is on bail.

(f) Petitioner shall not leave India without the permission of the Court having jurisdiction.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court.