IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 6938 of 2008()
1. THANKACHY MATHEW,D/O.MATHAI,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY ITS
... Respondent
For Petitioner :SRI.G.P.SHINOD
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :13/11/2008
O R D E R
K. HEMA, J.
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B.A. No. 6938 of 2008
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Dated this the 13th day of November,2008
O R D E R
Petition for bail.
2. The alleged offences are under sections 363 and 366A
IPC. According to prosecution, petitioner (A2) was running a care
home for girls who are orphans and financially backward. The 1st
accused was helping 2nd accused for running the care home. On
6-10-2008, an inmate of the care home who is aged 15 years and
studying X th Standard was found missing. Her mother was
informed and she gave a complaint before the police and it was
revealed that the child was subjected to sexual intercourse by 1st
accused who took her away under the pretext of entrusting her
with her father. The victim’s father and mother were residing
separately, since their relationship was strained. The child was
taken to the care home by her mother. The child was also traced
out later and she gave a statement to the police. A crime was
registered on the basis of a statement given by the victim’s
mother on 7-10-2008 at 4 p.m.
3. Learned counsel for petitioner submitted that
petitioner was running an institution by name Karunalayam for
the welfare of financially poor girls and orphans. The alleged
victim in this case is one of the inmates of the institution, as
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entrusted by her own mother who was living separately from her
husband. The 1st accused used to come to Karunalayam for
helping petitioner for running of the institution by supplying
vegetables, etc. Later, petitioner found that 1st accused had
developed some intimacy with the alleged victim. He was told not
to continue the relationship. This was not to the liking of 1st
accused. He continued to contact the victim over a mobile phone,
which was handed over to the victim without knowledge of
petitioner.
4. Later, as persuaded by 1st accused and under his
compulsion, the girl went along with him on 6-10-2008. On
finding that the girl was missing, petitioner made a search for the
child and later she herself gave a statement before the police on
the same day in the night at 9 p.m., after failing in all her
attempts to trace the girl. In the order of learned Sessions Judge,
it has been observed that “It is seen from the records that the
above case was originally registered as per Crime No.324/08 on
07-10-08 for women missing on the basis of the statement given
by the present petitioner who was conducting an institution by
name Karunalayam at Chempazhanthy…….”
5. Thus F.I.R. itself was registered on the basis of
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petitioner’s statement. Later, it is understood that petitioner who
is the complainant was transformed into the accused. It is also
made to appear that crime was registered on the basis of a
statement given by mother of the victim. This was done at the
instance of certain people with whom she had some difference of
opinion. Petitioner is absolutely innocent of the allegations made
and she was arrested on 8-10-2008 and she is in custody for the
past 34 days, it is submitted.
6. This petition is opposed. Learned Public Prosecutor
submitted that statement of the alleged victim is available in the
case diary which clearly shows that the mobile phone was
supplied to her by petitioner and at her connivance, she was
contacting 1st accused and both the accused were cheating her in
collusion with each other. The 1st accused had taken away the
victim promising her that she will be entrusted to her father but
under this guise, she was taken to various places and she was
subjected to sexual intercourse by him without her consent. The
act was committed with the knowledge and connivance of 2nd
accused and hence, this is not a fit case to grant bail, it is
submitted. It is also submitted that 1st accused is absconding and
he could not be arrested so far. After committing the offence, 1st
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accused abandoned the child and her father took her from
Kasargod bus stand, on receiving her phone call, it is submitted.
7. On hearing both sides and on considering contentions
raised, I have gone through the case diary. The statement of
petitioner is available in the case diary and its contents more or
less support the case now advanced by petitioner. It is seen from
the statement that petitioner was objecting to the relationship
between 1st accused and the victim and that she had given a
complaint to the police. It is also seen from her statement that on
the same day of missing at 9 p.m. she had given a statement to
police. Though learned Sessions Judge also noticed that the crime
was registered on the basis of a statement given by petitioner
herself, such a statement is now found missing in the file.
Instead a statement given by the victim’s mother on the next day
on 7-10-2008 at 4 p.m. is shown as First Information Statement,
based on which, crime was registered.
8. It is also seen from the statement of the victim herself
that the mobile phone, which she was using to contact 1st
accused, was that of the 1st accused himself, though she would
allege that the said phone was handed over by petitioner to her.
Statement of the victim itself reveals that petitioner had objected
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to the relationship between the victim and 1st accused and she
has also threatened that her mother and police will be informed, if
they continued the relationship. On considering all the above facts
and circumstances, I find that there is no justification in detaining
petitioner any more in prison and she can be granted bail.
9. Hence, petitioner shall be released on bail on her
executing a bond for Rs.25,000/- with two solvent sureties each
for the like amount to the satisfaction of the learned Magistrate,
on the following conditions:-
1) Petitioner shall report before the
Investigating Officer as and when
directed.
2) Petitioner shall not intimidate or influence
any witness or tamper with evidence or
commit any offence while on bail and in
case breach of this condition, bail is liable
to be cancelled.
This petition is allowed.
K.HEMA, JUDGE.
mn.