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2017 DIGILAW 1239 (KER)

SUNIL N. S. @ PULSOR SUNI v. STATE OF KERALA

2017-09-25

P.UBAID

body2017
JUDGMENT : P. UBAID, J. 1. The petitioner in B.A.No.6553/2017 is the 1st accused in Crime No.297/2017 of the Nedumbassery Police Station, and the petitioner in B.A.No.6582/2017 is the 6th accused in the said crime. These two petitioners seek regular bail under Section 439 Cr.P.C., on dismissal of their application by the Court of Session, Ernakulam. The 1st accused has been in judicial custody since 23.02.2017 and the 6th accused has been in custody since 19.02.2017. 2. This is a case where a cine actress was abducted and subjected to brutal sexual abuse including oral sex in a running car. She was abducted by a gang of persons including these two petitioners, and it is alleged that they did it in execution of a criminal design hatched by them and the other accused. The First Information Statement given by the victim contains the details of what transpired inside the car, and what sort of sexual harassment she had to undergo at the hands of these two petitioners and the other members of the gang. The two petitioners applied for bail during investigation, but their request was disallowed by the courts below. Without delay, the police completed the investigation and submitted final report against these petitioners and others, alleging a case of abduction and gang rape including oral sex. Thereafter, the police proceeded for further investigation under Section 173 (8) Cr.P.C., on the basis of definite materials showing some active conspiracy behind the acts of offence, and now such investigation is going on. Some persons including a prominent cine actor were arraigned as accused during such investigation, by the police. 3. Now that investigation as against these petitioners as regards the main offences is over, and the final report as against them is in court, the only consideration in the matter of bail is whether there is any possibility of the petitioners obstructing the trial process, in any manner. 4. As required by this Court, the investigating officer submitted a report on the following aspects. (a) The nature and the gravity of the offences alleged. (b) The subsequent conduct of the accused from the date of incident till the date of his arrest. (c) The details of the evidence and other materials as against him, produced in the court below. (d) The antecedents of the accused, including involvement in other crimes. (a) The nature and the gravity of the offences alleged. (b) The subsequent conduct of the accused from the date of incident till the date of his arrest. (c) The details of the evidence and other materials as against him, produced in the court below. (d) The antecedents of the accused, including involvement in other crimes. (4) The report now submitted by the investigating officer contains the details required by the court. The learned counsel for the petitioner submitted that this is in fact only a case of outrage of modesty punishable under Section 354 IPC, or at the best, only a case of attempted rape. The First Information Statement given by the victim contains the details of the acts of offences allegedly committed by the accused. I am not inclined to accept the arguments now made by the learned counsel that what is, prima facie, made out is only a case of outrage of modesty, or a case of attempted rape. A clear case of rape by a gang, as defined under Section 375(a) IPC by way of oral sex is well made out, prima facie, by the prosecution records including the complaint given by the victim. I fail to understand how the defence would casually argue that this is only a case of outrage of modesty, or at the best, a case of attempted rape. 5. The police report shows the subsequent conduct of the accused after the incident. The report shows that just after the incident, he vanished from the locality and tried all means possible to destroy the evidence including the evidence of the rape scenes videographed by the gang inside the running car. What is, prima facie, revealed by the prosecution records is that the victim was brutally ravished sexually inside the car, and the accused even photographed or videographed the entire scenes. When the petitioners and others suspected that they would be caught by the police, they destroyed the scientific materials. After destroying the materials, these petitioners and the others tried all means possible to evade arrest by the police, and they even, on advice, or otherwise, vanished for sometime from the locality. There is reason to believe that during this period, some efforts and attempts were made by the accused, to misguide the police also. After destroying the materials, these petitioners and the others tried all means possible to evade arrest by the police, and they even, on advice, or otherwise, vanished for sometime from the locality. There is reason to believe that during this period, some efforts and attempts were made by the accused, to misguide the police also. Anyway, when the 1st accused came to the court to surrender, he was tactfully caught by the police, and his arrest was recorded after interrogation. 6. On a perusal of the prosecution records, I find that there are clear and definite materials including the direct evidence of the victim, and also other circumstances including scientific evidence, against these petitioners and the others who allegedly committed the acts of offence. Nothing can be now said about the conspiracy aspect now being investigated by the police. Clear materials are there against these petitioners and the others against whom final report is filed by the police, for a prosecution on the allegation of abduction, gang rape in the form of oral sex, and also the offences punishable under the Information Technology Act. This is not a case where the materials produced by the prosecution are suspicious, as the learned counsel would submit. 7. The police report shows that the 1st accused is involved in so many crimes, and that he is even a previous convict. The report shows that he is a man of very bad antecedents. Four of the crimes registered against him are under Section 379 IPC, one is prominently under Section 393 IPC, one is mainly under Section 394 IPC, another is mainly under Section 365 read with 511 IPC, and two are under the NDPS Act. The learned counsel for the appellant initially submitted that the accused is not aware of all these crimes. The police report shows that in some of the cases he has been convicted by the trial court. When asked about these convictions, the learned counsel could not satisfactorily answer as to how he happened to be convicted without his knowledge. I am well satisfied that the 1st accused is a man of very bad antecedents, with involvement in so many crimes. 8. Now, the consideration is whether such a person can be granted bail, or whether there is any possibility of the petitioners obstructing the trial process, in any manner. I am well satisfied that the 1st accused is a man of very bad antecedents, with involvement in so many crimes. 8. Now, the consideration is whether such a person can be granted bail, or whether there is any possibility of the petitioners obstructing the trial process, in any manner. In taking a decision, the court will have to consider various aspects. The nature and the gravity of the offence is one of the considerations, and the antecedents of the accused also will have to be considered by the court. This is a case of grave offences where the police is ready with clear materials including direct evidence. The petitioner is a person of bad antecedents with involvement in so many crimes. Immediately after the incident, he tried all means possible to escape from the clutches of law, and even destroyed the evidence including scientific evidence. It is quite definite that such a person will make all efforts possible to torpedo the trial process either by absconding from the legal process, or by trying all means possible to influence or threaten, or win over the witnesses. Many of the witnesses are from the cinema field. These accused have also some connections with the cinema industry. If the prosecution's concern is that such a person will try all means possible to influence the material witnesses, it will have to be accepted by the court. In the nature of the allegations and also the materials produced against him by the police in the court below, and also the other circumstances including the petitioners' antecedents, and the possibility of obstruction to trial in all ways possible, I feel it inappropriate to release the petitioners on bail. These two petitioners are two among the persons clearly identified by the victim during a test identification parade, as the persons who actually committed the acts of offence. I find the definite possibility of the trial process being torpedoed or obstructed, if the petitioners are granted bail. It is made clear that this order rejecting bail will not stand in the way of the petitioners approaching the trial court for bail in due course of trial, if circumstances permit, after the examination of the material witnesses. In case such an application is made, the trial court can take decision appropriately on a consideration of all the relevant aspects including the possibility of obstruction to trial. 9. In case such an application is made, the trial court can take decision appropriately on a consideration of all the relevant aspects including the possibility of obstruction to trial. 9. In the result, these two applications are dismissed. The trial court is directed to expedite the trial after the supplemental final report under Section 173(8) Cr.P.C. is filed, and the procedural formalities are complied with.