Vishnu Sankar P vs State Of Kerala

M.R.Anitha, J

Application for regular bail filed under Section 439 of the Code of Criminal Procedure.

Petitioner is the sole accused in crime No.340/2021 of Valapattanam Police Station, which has been registered for the offences punishable under Sections 376(2)(n)(l), 312 and 420 IPC.

It is alleged that the defacto complainant is a differently abled woman and the petitioner committed rape upon her four times during the period 2017 -2019 in a lodge at Parassinikkadavu. When she became pregnant, forcefully he got the pregnancy terminated by compelling her to take pills. He also alleged to have obtained 12 sovereigns of gold ornaments and Rs.45,000/- from the defacto complainant, thereby the accused alleged to have committed the offences aforementioned.

According to the learned counsel for the petitioner, this case is a totally false case foisted against him to grab money through blackmailing him. The monetary transaction between him and the defacto complainant has been closed and Annexure-I, copy of the agreement has been produced by him to substantiate that fact. It is also his contention that the defacto complainant obtained money by filing false complaints against another person also and to substantiate that contention he produced Annexures-VI and VII. After getting threatening call from the defacto complainant he filed Annexure-II complaint before the Deputy Superintendent of Police, Kannur. But instead of taking action on that complaint, this crime has been registered against him. The petitioner has been arrested on 31.07.2021 and thereafter he has been under confinement.

The learned Public Prosecutor strongly objects in considering the petition. The report filed by the Inspector of Police, Valapattanam Police Station and the copy of the 164 statement of the victim also has been produced and it is contended by the learned Prosecutor that the petitioner is involved in crime No.400/2016 registered u/s. 143, 147, 148, 323, 324, 326, 427, 302 r/w. 149 IPC of Valappattanam police station and Crime No.40/20 registered u/s. 8(1) and (2) of Abkari Act of Pappinissery Excise Range.

It is contended by the petitioner that crime No.400/2016 is a politically motivated case. But crime No.40/2020 is seen to have registered u/s. 8(1) and (2) of Abkari Act of Pappinissery Excise Range. So the pendency of the two crimes that too of grievous nature disentitle the petitioner to get bail.

Annexure-I agreement would go to show that on 31.12.2019 there was an agreement between the petitioner and the defacto complainant, in which it has been specifically stated that for the last two years they have financial and several other transactions and mediators intervened and matter has been settled. It is also stated by the victim in that agreement that she had received full amount due from the petitioner and further there is no liability to him towards her. She also agreed not to file any complaint against the petitioner. Annexure-II is the complaint filed by the petitioner to the Deputy Superintendent of Police, Kannur dated 15.03.2021 in which he has stated about the threat caused by the defacto complainant to file case against him. He produced Anneuxre-V copy of the marriage certificate of the petitioner which would show that he has got married on 15.07.2017.

Annexure-VII FIR would show that the defacto complainant had filed complaint on 11.05.2014 against one Basheer in which she alleged that promising to marry her he subjected her to sexual intercourse and also obtained Rs.4 lakhs from her and failed to return the same. Annexure-VIII is another FIR registered against one Shamsu at the instance of the defacto complainant on 10.11.2019 and the crime has been registered u/s.354 IPC. The documents produced from the side of the petitioner would reveal that the defacto complainant had filed earlier complaint against one Basheer alleging commission of offence u/s.376 and 420 IPC. In the complaint filed by the petitioner which is produced as Annexure-II the petitioner had made reference with regard to that complaint. In Annexure-I agreement there is specific reference that for the last two years the petitioner and the defacto complainant had financial transaction and several other types of transactions and mediators intervened and she obtained the entire amount at the intervention of the mediators and further an undertaking was also obtained as per the agreement to not to file any complaint against the petitioner in the matters pertaining thereto. The learned Prosecutor challenged the genuineness of the agreement.

The report filed by the investigating officer would state that the witnesses have given statement to the effect that accused had been to the shop of the defacto complainant on several occasions. On examining the registers of the tourist home referred by the defacto complainant it was found that the petitioner had gone to those tourist home and taken rooms and those records have been seized. It is further stated that evidence has been collected with regard to the pregnancy test and the lab report. There is also reference with regard to the contact between the defacto complainant and Basheer during 2013 and the registration of crime No.545/2014 u/s.376 and 420 IPC of Valapattanam police station against him and investigation has been completed and that case is now pending as SC 430/2016 on the file of the Fast Track Court, Taliparamba. It is further stated that in connection with that case when the defacto complainant went to Valapattanam police station accidentally she met the petitioner herein and he came there in connection with the murder case to sign before the police. He came in to contact with the defacto complainant offering to aid in conducting the case against Basheer and there after intimacy developed and he committed the acts of rape as alleged by the defacto complainant. It is further stated that she became pregnant in the year 2019 and only during that time he revealed that he has got wife and forcefully asked her to take the pills for terminating the pregnancy. The report further shows that the petitioner is involved in a murder case and also in an abkari case charged u/s. 8 (1) and (2) of Abkari Act. The investigation is not over. It is stated in the report filed by the SHO that there is threat to the de facto complainant at the instance of the wife and friends of accused to withdraw the case. Victim is a physically challenged woman. So I do not think that this is a fit case to grant bail to the petitioner at this stage. Hence Bail Application dismissed.