A. Badharudeen, J
1. This is an appeal filed under Section 14A(2) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to
as `SC/ST Act' for convenience) challenging order in C.M.P.No.2676/2022 on the file of the Special Judge dated 07.11.2022, whereby the Special
Judge dismissed the regular bail plea at the instance of the appellants herein.
2. Although notice was issued to the defacto complainant as mandated under Section 15-A(3) of the SC/ST Act, she did not appear.
3. Heard the learned counsel for the appellants as well as the learned Public Prosecutor.
4. The prosecution case is that the minor daughter aged 14 years of the defacto complainant, who belongs to Scheduled Caste community, was found
missing on 23.10.2022. Accordingly, complaint was made orally before the Kovalam Police. Thereafter recording F.I statement, crime was registered
under Section 57(1)(A) of Kerala Police Act. Later, the girl was traced out and questioned, she divulged sexual abuse committed by the appellants
herein. The allegation is that at about 4 a.m on 23.10.2022, the daughter of the defacto complainant contacted the 1st accused through instagram and
requested him to arrange shelter for her. Accordingly, the accused had come along with accused No.2 on a motorcycle and abducted her to
Vellayanikayal. They had been there till 1 a.m. Thereafter, the appellants took the girl to MM Lodge, near Kakkammoola junction. Thereafter, the
accused directed her to be disrobed and both the appellants laid along with her. They embraced and kissed her and caught hold off her private parts.
The appellants attempted to have sexual intercourse with her. But the said attempt failed, since she was on menstruation.
5. On the basis of this disclosure given by the defacto complainant, crime alleging commission of the above offences was registered and is on
investigation. Accordingly, the accused were arrested on 24.10.2022 and have been in custody till now.
6. The learned counsel for the appellants highlighted the statement given by the girl before the doctor as stated in the medical certificate to posit the
fact that the girl given a different version before the Doctor, in deviation from the prosecution allegations. It is submitted that in the medical certificate,
suggesting history/details stated by the sexually assaulted persons, the victim stated that Kannan and his friend (appellants 1 and 2) took her in a bike
and then to a lodge (name is not known to her) at Kakkammoola and they left. Accordingly, it is submitted by the learned counsel for the appellants
that what has been stated in the medical certificate, is the real incident happened and thereafter the police recorded statement otherwise as could be
seen from the narrations in the F.I statement. Therefore, the persons who are in custody, had, in fact, attempted to save the victim when she
demanded shelter and they are innocent persons. Therefore, they deserve bail.
7. The learned Public Prosecutor vehemently opposed the bail on the submission that in the F.I statement as well as in the 164 statement given before
the court below the victim categorically stated about the sexual assault and the attempt of the accused to commit sexual intercourse. Therefore, the
prosecution allegation as to commission of the above offence is well made out. According to the learned Public Prosecutor, investigation is at the
premature stage and, therefore, the appellants could not be released at this stage, since the same would hamper the investigation.
8. On perusal of the F.I statement and 164 statement of the witnesses, the submission at the instance of the Public Prosecutor appears to be correct.
That is to say, the victim stated about the sexual assault at the instance of the accused after taking her to MM Lodge, Kakkammoola and attempt on
the part of the appellants to commit rape on her. But the same was not succeeded since she hesitated to do so since she was on menstruation period.
9. Similarly, on perusal of the medical certificate, the statement of the victim as argued by the learned Public Prosecutor.
10. In this matter, the appellants have no criminal antecedents. The victim had given 2 separate versions as could be read out prima facie from the
medical certificate as well as the F.I statement and 164 statement. Anyhow, all these matters require detailed investigation and further matters of
evidence.
11. Since the appellants are the first time offenders and have been in custody from 24.10.2022, I am of the view that they can be enlarged on bail,
since their custody for the purpose of investigation is practically over. Therefore, the order impugned is set aside and the appeal stands allowed on the
following conditions:
i) The appellants/accused shall be released on bail on their executing bonds for Rs.50,000/- (Rupees Fifty Thousand Only) each with two solvent sureties, each for
the like amount to the satisfaction of the Special Court concerned;
ii) The appellants/accused shall not intimidate witnesses or tamper the evidence. They shall co-operate with trial and shall be available for trial;
iii) The appellants/accused shall not leave the jurisdiction of the Special Court without prior permission of the court;
iv) The appellants/accused shall not involve in any other offence during the currency of bail and any such event, if reported to came to the notice of this Court, the
same shall be a reason to cancel the bail hereby granted to them.
The appellants/accused shall not disturb the defacto complainant in any manner hereafter, and any such event, if reported, or comes to
the knowledge of this Court, the same is a reason to cancel the bail hereby granted.
