Research › Search › Judgment

Kerala High Court · body

2013 DIGILAW 727 (KER)

Baby v. State of Kerala

2013-08-20

P.BHAVADASAN

body2013
ORDER : P. Bhavadasan, J. This bail application reveals the shocking state of affairs in the State of Kerala with regard to the implementation of Protection of Children from Sexual Offences Act, 2012. One is shocked to see the manner in which the act is being implemented and how the life of the persons are being played with at ease. 2. Now on to the facts:- The petitioner is the first accused in Crime No. 949 of 2013 of Vadakkeakkara Police Station who is alleged to have committed offences punishable under Sections 5 read with 6 and 9 read with 10 of the Protection of Children from Sexual Offences Act, 2012. 3. The petitioner is alleged to have committed repeated rapes on the victim and he is alleged to have concealed the same. 4. The petitioner says that he has been falsely implicated. According to him, while the three children of one Ponnamma, after the death of their mother, were staying with the second accused and her husband. It so happened that the children were being ill-treated and the petitioner and his wife used to intervene and try to prevent child abuse. On a particular day, in the night, hearing the cries of the child from the house they were staying, the petitioner and his wife went over there and found that a person was lying beside the child by name Pavithra and they woke up the uncle and aunt of the children and informed about the same and on the next day, the children were removed to the Sishubhavan. In the statement initially taken and the investigation conducted, it was revealed that the person who was found lying beside Pavithra was one sreenivasan who is closely related to the uncle of the victim with whom the victim and her sisters were staying. The crime was registered against Sreenivasan and he was taken into custody. After investigation, final report was filed. 5. It is seen from the records that the children were later shifted to another home where on questioning, totally different story is given by the victim than those made mention of earlier and also by her sister. They accused the petitioner of having violated Pavithra as well as her sister. The petitioner would say that the allegations have been cooked up and he has been made implicated with ulterior motive. They accused the petitioner of having violated Pavithra as well as her sister. The petitioner would say that the allegations have been cooked up and he has been made implicated with ulterior motive. He denies of having committed any act as alleged and says that his continued custody is unnecessary. 6. The learned Public Prosecutor opposed the petition and pointed out that the allegations against the petitioner are of serious nature and the investigation is going on. 7. After having heard the learned counsel for the petitioner and the learned Public Prosecutor and having perused the records, it is felt that there is considerable force in the submissions made by the petitioner. True, the petitioner is alleged to have committed very serious offences. But it is shocking to see that the child who initially had implicated one Sreenivasan now implicates the petitioner. She gives two entirely different and inconsistent statements at two points of time to two different persons based on which crimes are registered. The statement of the victim, namely Pavithra are indeed strange. And more alarming is the medical report which totally belie the version given by the child. 8. Initially, the child implicated Sreenivasan and he was taken into custody and remained in jail for several days. Now it is the petitioner's turn. It is all done under the guise of child welfare. 9. It is the time that a probe is made to the manner in which a crime happens to be registered in these matters. It is seen that quite often, the child welfare workers file complaints to the committee concerned and they forward complaints to the Police and crime is automatically registered. Persons are arrested and put in jail. There is no preliminary enquiry made to as certain whether the allegations are even prima facie true. In the case on hand, if the claim made by the victim is true, it is inconceivable that there would not have been corresponding medical evidence. Two doctors examined the victim and both of them say that there is absolutely no evidence of any sexual assault or sexual abuse on the child. That casts considerable doubt or suspicion regarding the manner in which or the method in which the statement of the victim is taken in this case. It becomes extremely precarious to act on such materials. 10. This case reflects the potential danger to all. That casts considerable doubt or suspicion regarding the manner in which or the method in which the statement of the victim is taken in this case. It becomes extremely precarious to act on such materials. 10. This case reflects the potential danger to all. No one seems to be safe. It seems that anybody can be implicated easily. It is time that more serious thought is given in the manner in which the crimes are registered in such matters. At any rate, a mere complaint by the committee concerned seems to be quite inadequate. It is necessary that some arrangement or method is made to ensure the preliminary enquiry is conducted before the crime is registered. In the case on hand, the petitioner has been in detention from 21.07.2013 onwards. Considering the facts and circumstances of the case, this petition is allowed as follows: (i) The petitioner shall be released on bail on his executing a bond for a sum of Rs. 15,000/- (Rupees Fifteen thousand only) with two solvent sureties for the like sum to the satisfaction of the Court concerned. (ii) The court concerned shall ensure the identity of the sureties and also the veracity of the tax receipts before granting bail. (iii) The petitioner shall appear before the Investigating Officer on every Friday between 9 am and 10 am until further orders. (iv) The petitioner shall not tamper or attempt to tamper with the evidence or influence or try to influence the witness. (v) If any one of the conditions is violated, the bail granted shall stand cancelled and the court concerned on being satisfied of the said fact, may take such proceedings as are available to him in law.