Kerala High Court
Unais M.K vs State Of Kerala on 28 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
BAIL APPL. NO. 3330 OF 2024
CRIME NO.113/2024 OF Feroke Police Station, Kozhikode
AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.136 OF 2024 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT (ATROCITIES &
SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN), KOZHIKODE
PETITIONER/ACCUSED:
UNAIS M.K.,
AGED 32 YEARS
S/O. ABDUL LATHEEF,
VALIYAPARAMBIL HOUSE, PERUMKHAM P.O.,
KOZHIKODE, PIN - 673631.
BY ADVS.
K.N.ABHILASH
SUNIL NAIR PALAKKAT
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2 XXXXXXXXXX
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3 XXXXXXXXXX
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SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
20.05.2024, THE COURT ON 28.05.2024 DELIVERED THE FOLLOWING:
B.A.No.3330/2024 2
A.BADHARUDEEN,J.
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B.A. No.3330 of 2024
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Dated this the 28th day of May, 2024
ORDER
This is an application for regular bail filed by the sole
accused in Crime No.113/2024 of Feroke Police Station,
Kozhikode.
2. Heard the learned counsel for the petitioner and the
learned Public Prosecutor in detail. Perused the relevant
documents placed by the petitioner as well as the learned
Public Prosecutor form part of the case diary.
3. In this matter, prosecution alleges commission of
offences punishable under Sections 354, 354-B, 376(3), 376(2)
(f), 354A(1)(i) of the Indian Penal Code (`IPC' for short) and
Sections 4(2) r/w 3(b), 6 r/w 5(n), 10 r/w 9(l), 9(n) of
Protection of Children from Sexual Offences Act (`PoCSO Act'
for short) on the premise that on 26.01.2024 the accused, who
is a relative of the victim minor girl (aged 15 years), took her to
the house of his locked house and then inside the house; then
the accused lither her churidar and bite and sucked on her
breast. Then the accused attempted to remove her pants. Then
the accused attempted to put his penis on her mouth and when
the victim resisted, he put his finger on her vagina and moved
the same repeatedly. He repeated the occurrence thereafter.
The petitioner was arrested on 28.01.2024 and he has been in
custody.
4. The learned counsel for the petitioner zealously
argued that the petitioner deserves bail and the allegations are
false. Highlighting the progress of the investigation and the
stature of the petitioner as a first time offender, the learned
counsel pressed for regular bail to the petitioner.
5. Grant of bail is zealously opposed by the learned
Public Prosecutor pointing out the fact that the petitioner is
none other than the son of the brother of the grandmother of the
victim and if he would be released on bail, there is likelihood
of threatening the witnesses.
6. It is submitted by the learned counsel for the
petitioner that, the relationship alleged by the prosecution is
correct, but going by the statements given by the victim, no
penetrative sexual assault could be found.
7. In view of the rival submission, I have gone through
the FIS given by the victim as well as 164 statement given by
the victim before the Magistrate. The victim given statement to
the effect that the accused took her to the house of his locked
house and then inside the house; then the accused lither her
churidar and bite and sucked on her breast. Then the accused
attempted to remove her pants. Then the accused attempted to
put his penis on her mouth and when the victim resisted, he put
his finger on her vagina and moved the same repeatedly.
Repeated instances of this nature also were stated in the
statements.
8. Coming to the question whether the accused
committed rape, reference under Section 375(b) of the IPC is
relevant. It has been provided therein that a man is said to
commit `rape' if he inserts, to any extent, any object or a part of
the body, not being the penis, into the vagina, the urethra or
anus of a woman or makes her to do so with him or any other
person. Further, the statement of the victim discloses
aggravated sexual assault. So, there is aggravated sexual
assault and rape made out in the present case and the victim is
none other than a close relative of the petitioner. It is
discernible from the order in Crl.M.C.No.136/2024 dated
08.04.2024 passed by the learned Sessions Judge that legal aid
counsel for the victim filed a report objecting the bail plea at
the instance of the petitioner before the Special Court and she
had convinced that the incident took place and now the child
had been under severe mental trauma. Further she has been
undergoing counselling. Since the offences alleged against the
petitioner are very serious and the accused, being a relative of
the victim, if released on bail, there is likelihood of threatening
the witnesses, including the victim. In such view of the matter,
the petitioner is not liable to be released in a case of this nature.
Accordingly, this bail application stands dismissed.
Sd/-
(A.BADHARUDEEN, JUDGE)
rtr/
