High Court Kerala High Court

Thankachy Mathew vs State Of Kerala Represented By Its on 13 November, 2008

Kerala High Court
Thankachy Mathew vs State Of Kerala Represented By Its on 13 November, 2008
       

  

  

 
 
  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.