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2017 DIGILAW 1065 (KER)

P. Gopalakrishnan @ Dileep v. State of Kerala

2017-07-24

SUNIL THOMAS

body2017
JUDGMENT : 1. The 11th accused in Crime No.297/2017 of Nedumbassery Police station for offences punishable under sections 120(B), 342,366,376(D),411,506(1),201,212 & 34 IPC and sections 66 (E) & 67(A) of the Information Technology Act, 2008, is the petitioner herein. 2. The crux of the prosecution case, as is discernible from the available records, is as follows: 3. The petitioner herein is a prominent Malayalam cine artist, having acted in several films in the main role. The victim is an unmarried, well known cine actress, who has several films to her credit. The petitioner herein had married a leading actress and a child was born in the matrimonial relationship. Subsequently, matrimonial disputes arose in their family, ultimately leading to a judicial separation. The petitioner herein suspected that, the victim herein, who was a close friend of his erstwhile wife, was instrumental in the disruption of his matrimonial life. To wreak vengeance, he allegedly conspired with the first accused, to abduct the victim and to take her nude photographs, on an offer that, the first accused would be paid Rupees One and Half Crores. The first accused was a driver, who used to get associated with film production units, and had a criminal track record. 4. On 17/2/2017, at about 7 p.m., the victim started from her house at Thrissur to proceed to Cochin, in a Mahendra XUV. vehicle, sent to her by the film production unit, to join the work in a film. The vehicle proceeded along the National Highway. The second accused was the driver of that vehicle, who was a stranger to the victim. It is alleged that, the first accused and his co-accused waited in a van near the Airport Junction and when the vehicle of the victim reached the spot, the first accused stage managed a fake accident, by hitting the van on the rear side of the XUV. Thereafter, third, fourth and sixth accused forcefully entered into the vehicle and wrongfully confined the victim to the rear seat. They drove the vehicle towards the Kochi city, followed by the van driven by the first accused. Thereafter, the first accused entered the vehicle and sexually molested her in the moving vehicle. While she was being sexually abused, first accused simultaneously video graphed with his mobile phone the entire incident, with close shots of the body of the helpless victim. They drove the vehicle towards the Kochi city, followed by the van driven by the first accused. Thereafter, the first accused entered the vehicle and sexually molested her in the moving vehicle. While she was being sexually abused, first accused simultaneously video graphed with his mobile phone the entire incident, with close shots of the body of the helpless victim. In the course of the sexual act, he had directed her to co-operate with him and divulged that, it was done by him on a quotation entrusted to him, by another person. The ordeal of the victim continued upto 11 p.m., in spite of her persistent plea for release. She was thereafter left off by the main accused. The second accused driver took the mentally shattered victim to the house of a film director, to whom she revealed the entire episode. Immediately, the matter was informed to the police. 5. FIS of the victim was recorded on 18/2/2017 at 3 a.m. and she underwent medical examination. Investigation commenced. Her statement under section 164 Cr.P.C. was also recorded before the Magistrate. It emerges that, in the course of the incident, the victim had identified the first accused, who had earlier driven her car while she was on a film shooting at Goa. In the course of investigation, the driver was arrested, which ultimately led to the arrest of seven persons. Arraying them as accused, final report was laid on 17/4/2017. Accused 1 to 6 were the persons who were involved in the main crime and seventh accused was charged with offence of harbouring the accused. 6. In the final report, it was clarified that, an advocate was also involved in the crime, against whom a separate charge sheet was proposed to be filed. The right of the investigating agency to investigate into the larger conspiracy was also reserved. The matter is now pending as CP No.17/2017 of Judicial First Class Magistrate Court, Angamaly. The investigation into the conspiracy, however, continued. The involvement of the petitioner herein was not revealed at that time. 7. In the meanwhile, on 22/4/2017, the petitioner herein submitted a written complaint dated 20/4/2017, to the Director General of Police, alleging that, few social media groups and unknown sources were trying to defame him and harass him in connection with the above incident involving the film actress. The involvement of the petitioner herein was not revealed at that time. 7. In the meanwhile, on 22/4/2017, the petitioner herein submitted a written complaint dated 20/4/2017, to the Director General of Police, alleging that, few social media groups and unknown sources were trying to defame him and harass him in connection with the above incident involving the film actress. It was stated that, his friend Nadirshah had received a telephone call from one Vishnu, claimed to be on behalf of the first accused, seeking financial help, with a threat that in case of failure, to connect the petitioner herein with the above case. Further, on 18/4/2017, his driver Appunni had received a letter by Whats up, allegedly written by the first accused addressed to the petitioner, demanding two crores of Rupees from him and in case of failure, to spoil the career of the petitioner. 8. In the course of investigation, the petitioner herein, Nadirshah and Appunni were questioned in detail. Thereafter, the petitioner was arrested on 10/7/2017 on an allegation that, the petitioner had engaged the first accused to take nude photographs of the victim on an offer to pay Rupees One and Half Crores. A sum of Rs.10,000/- was allegedly paid by the petitioner as advance in December, 2015. Petitioner is in custody since the date of arrest. The petitioner, contending that he is absolutely innocent and is sought to be roped in the crime consequent to a deep rooted conspiracy, seeks bail. 9. It was contended by the learned senior counsel for the petitioner that, none of the 19 circumstances mentioned in the remand report was connected with the petitioner. There was not even an iota of evidence to connect him with the incident, much less, with any part of the conspiracy. It was further contended that, even assuming that the first accused was available at places where the petitioner, himself being a popular artist, was present, that by itself is not sufficient to establish conspiracy. It was further contented that, the petitioner was questioned initially for 13 hours and subsequently for ten hours, prior to his arrest. Thereafter, he was given the police custody for three days. Hence, the petitioner is not required any further, for the purpose of investigation and consequently his further custody is not justified, contented the learned senior counsel. 10. It was further contented that, the petitioner was questioned initially for 13 hours and subsequently for ten hours, prior to his arrest. Thereafter, he was given the police custody for three days. Hence, the petitioner is not required any further, for the purpose of investigation and consequently his further custody is not justified, contented the learned senior counsel. 10. Per contra, learned Director General of Prosecution contended that, the petitioner is the king pin of the crime. He had given quotation to the first accused, a known criminal, to commit the nefarious crime. It was contended that, engaging criminals on quotation for committing sexual abuse on a victim to wreak vengeance was unheard of. It was further contended that, there were cogent, clinging, direct, indirect, circumstantial and scientific evidence to establish that the petitioner had conspired with the first accused. 11. No doubt, conspiracy is hatched in secrecy and direct evidence is rarely available. The prosecution is trying to allege the conspiracy and to connect the petitioner herein with the case, on the basis of circumstantial evidence. It emerges that, investigating agency is proceeding on a premise that, the petitioner herein had a definite stand that he did not know the first accused and never had occasion to meet him. Another premise on which the investigation proceeded was that, the complaint dated 20/4/2017 submitted by the petitioner to the Director General of Police was a clever move to preempt a possible revelation of the involvement of the petitioner in the crime, by the first accused. The learned Director General of Prosecution relied on the materials available on record to contend that investigation has gathered sufficient materials to establish the role of the petitioner in the conspiracy. They fall into two categories. Those materials prior to the actual commission of offence and the conduct of the accused subsequent to the commission of offence. 12. Definitely, the incident that happened on 17/2/2017 is very serious. A young actress was abducted in the busiest National Highway, taken through the city for about two and half hours, subjected to the shocking ordeal of sexual assault and video graphed, inside a moving car. The victim had identified the first accused in the car itself. At the initial stage itself, matter was reported to the police and the second accused driver whose conduct appeared to be doubtful was arrested, immediately after the incident. The victim had identified the first accused in the car itself. At the initial stage itself, matter was reported to the police and the second accused driver whose conduct appeared to be doubtful was arrested, immediately after the incident. The commission of crime is so cruel and diabolic and liable to shake the conscience of the society. 13. The investigation agency alleges that, the petitioner herein had a definite motive to commit crime. It was alleged that, the petitioner herein suspected that the victim was instrumental for the disruption of his matrimonial relationship. The petitioner believed that, the victim had spoiled his family life by conveying information about the petitioner to the former wife. There are enough materials available on record to show that, the relationship of petitioner with victim was strained. There are versions of few persons that, the victim lost few opportunities to act in films thereafter, which affected her professional career also. 14. The conspiracy angle is sought to be established by alleging that the petitioner herein had met the first accused at five different specified places, where the conspiracy was hatched. One was in a hotel wherein the petitioner allegedly instructed the first accused to commit the act and offered to pay the huge amount. Hotel records are relied on by the prosecution to establish that room was booked in the name of the petitioner herein. The presence of both the petitioner and the accused at all the five places at the same time is sought to be established by call record details, tower location of mobiles or by direct oral evidence, gathered by the investigation. The disclosure made by the first accused about the conspiracy hatched with the petitioner, in the investigation and those made to others have led to discovery of several crucial materials and facts. 15. The prosecution has a case that, the tenor and tone of the letter allegedly sent by the first accused did not evidence that it was in the form of a threatening letter or intended to blackmail the petitioner. Versions of some persons, to whom first accused allegedly disclosed the conspiracy, are available. It is on record that, after the arrest of the first accused, a mobile phone was stealthily taken inside the jail by first accused and he had contacted several persons. Versions of some persons, to whom first accused allegedly disclosed the conspiracy, are available. It is on record that, after the arrest of the first accused, a mobile phone was stealthily taken inside the jail by first accused and he had contacted several persons. Call details both of the above mobile phone and that from the coin box land line provided in the jail show the continuous phone calls made by the first accused to few doubtful persons, some persons connected with the petitioner and inter se calls among them. Details of several inter connected phone calls are also unearthed by the investigating agency, with the tower location of each person. Details of attempts made by Vishnu to contact petitioner through few sources are also on record. Records indicate that the first accused had written the letter from the jail itself. Materials to indicate that, immediately after the commission of crime, the accused along with a co-accused had attempted to hand over the mobile and memory card to the associates of petitioner. 16. The above facts, show that prima facie there are materials to suspect the involvement of the petitioner in the crime. Investigation is still progressing. It is still at a crucial stage. It was submitted by the learned Director General of Prosecution that, the manager Appunni is absconding and the lawyer involved has to be effectively questioned. The possibility of implicating other persons in the crime has also not been ruled out by the learned DGP. Investigation seems to be progressing. 17. The case is unique, considering its seriousness, meticulous planning, cruel nature of execution and being a crime executed to wreak vengeance on a woman by engaging criminals, to sexually abuse her. Courts have to be circumspect in granting bail in such cases. 18. There is yet another major reason which prompts rejection of bail application. The crucial material object which is the mobile phone used for recording the sexual assault and the memory card in which the video graphed materials are stored have not been recovered. The memory card is a potential threat to the life of the victim and there is every possibility of any of the accused attempting to interfere in the investigation and the prosecution with the memory card. 19. The memory card is a potential threat to the life of the victim and there is every possibility of any of the accused attempting to interfere in the investigation and the prosecution with the memory card. 19. The petitioner, being a noted film actor, is also involved in the distribution and production of films and is also owner of a theater. Definitely, he must be wielding considerable command on the industry. Hence, the possibility of the petitioner influencing or threatening the several witnesses, who are also from the same industry, cannot be ruled out. Having considered the above facts, I feel that it is too early at this stage to grant bail to the petitioner. Accordingly, bail application fails and is dismissed.