Complainant 'Highly Qualified', Shared 'Intense Relationship' With Accused: Kerala Court Grants Pre-Arrest Bail To Congress MLA In Rape Case

The Additional Sessions Court at Thiruvananthapuram in Kerala, has granted anticipatory bail to the Congress MLA Eldhose Kunnappilly in a case accusing him of rape and attempt to murder.

ASJ Prasun Mohan in the order said the victim or rape survivor in her first complaint dated September 28 never "asserted" that the accused raped her "on any dates before the date of presenting the complaint". The police had initially registered a case under Section 362, 323, 354, 506(i) r/w 34 of the IPC, the court noted.

"Survivor was well aware of the fact that the Ist accused is a married man maintaining a family relationship," it added.

The court further said that the survivor was well aware that a legal marriage with the accused is not possible during the subsistence of his marriage.

"As per statement dt. 14.10.2022, the last day on which an offence of rape is allegedly committed by the accused is on 15.09.2022. However, the victim didn't lodge a complaint alleging the commission of rape till a statement u/s 164 CrPC was made to the learned Magisterate on 14.10.2022," it added.

Observing that the victim gave another statement before the magistrate on October 10 but there also no allegation was made, the court said the statement of the survivor made between September 15 and October 14 assumes significance in considering the nature and gravity of those offences alleged against the accused in the subsequent statement dated October 14.

"In that statement made by the survivor on 14.10.2022, it is alleged for the first time that, the 1st accused raped the victim/survivor on 04.07.2022, 05.07.2022,14.09.2022 and 15.09.2022 respectively at different places. However, no complaints of rape was made either in the complaint dt 28.09.2022 or in the statement dt 10.10.2022," the court noted.

It further observed that the survivor was not under any form of confinement from July 4 to September 15. Even as per prosecution case the petitioner and Ist accused been communicating directly and through WhatsApp and mobile phone "consistently, frequently and in plenty", it added.

"Survivor is a highly qualified person and therefore, cannot be considered to be ignorant of the provisions of law. No allegation of rape is narrated by the survivor to the doctor on 15.09.2022 at 3:30 am in the hospital, that is, at the earliest possible opportunity," said the court.

The ASJ also said, "the contents of complaint as well as statement prima facie convey an intense relationship between them". The mobile phones of the petitioner are to be recovered by the police for retrieving the messages, the judge added.

"It is gathered from the prosecution allegations that there arose some difference of opinion between the survivor and the petitioner, with respect to some promiscuous behaviour of the petitioner for moving away from that relation," the court noted further.

The court also said that the petitioner has produced a copy of the WhatsApp chat with the survivor between September 26 and "the same reveals about the intimacy between them."

Relying on a Supreme Court judgement, the court reiterated that: "Care must be taken to avoid consensual relationships being converted into instances of rape".

"However, each case presents its own factual scenario and therefore, grounds for granting or disallowing bail ought to be taken into account on the peculiar facts and circumstances of each case," it added.

The court said the circumstances in the case can neither be ignored nor omitted while arriving at the conclusion on the question whether the discretion of pre-arrest bail should be extended to the petitioner or not.

On Section 307 and 354-B in the FIR, the court said the addition of Section 354 is only coming as an "addition" to the charge under Section 376(2)(n) of the IPC. No substantial changes occurred to the prosecution case as a consequence of inclusion of Section 307 against the accused, it added.

"Those improvements made in the statement of survivor dated 14.10.22 for incorporating the ingredients of Section 307 is not specifically mentioned in complaint dated 28.09.2022 and statement dated 10.10.2022," said the court.

Observing that there is no likelihood that the legislator will flee from justice or abscond on bail, the court said no criminal antecedents are reported against the petitioner.

"On considering the circumstances mentioned above, I do hold that the petitioner ought to be given the benefit of discretion of pre-arrest bail subject to imposition of stringent conditions…," it said, while granting the MLA bail.

The accused has been asked to surrender and appear before the investigating officer and subject himself for interrogation from October 22 and November 01 from 9 am to 7 pm. "The petitioner shall not indulge in any form of attack on the victim either through social media or other modes of communication against the victim and family," reads one of the bail conditions in the order.

The Case

The Prosecution case was that the Petitioner-accused who is an MLA representing Perumbavoor constituency in Kerala allegedly maintained frequent contact with the victim through calls and Whatsapp messages since 2018. He would also send her obscene videos and also "instigated her" to visit the MLA Hostel. It is alleged that on July 4, the accused invited the victim to Somatheeram Resort in Kovalam on the pretext of him having a meeting there, and proceeded to rape her by giving her false assurance that he would look after her "for the rest of her life."

The prosecution alleged that there had been several such incidents of physical assault and rape.

On the other hand, the accused claimed that the victim had taken away one of the phones belonging to him, and demanded money, failing which "she would falsely implicate him in a sexual atrocities case". It was submitted that the wife of the petitioner had filed a complaint before the S.H.O Kuruppampady, regarding the threat. Subsequently, the complainant also filed a "false complaint with false allegations", leading to registration of the rape case, the court was told.

Accused's Submissions

Before the trial court, it was contended by Advocate Sudheer Kuttiyani on behalf of the petitioner-accused that the instant case was false. Nine sets of documents were also produced to "attack the past character and conduct of the victim". The court was told that the victim/de facto complainant is an accused in five criminal cases and "the same may be perused to ascertain the past conduct and character of the victim".

In another series of documents, the court was told the same complainant had lodged similar complaints against several persons alleging offences under Section 354 and 376 IPC.

In 'C' series documents which indicated that the victim had approached the Family Court for domestic violence and breakdown of marital relations, the court was told to look at her experience in conducting litigations.

The court was also shown 'D' series documents which purportedly referred to a report filed by SHO Cantonment contending that the victim is a frivolous litigant, and 'E' series documents which showed that the wife of the petitioner-accused had filed a case before S.H.O Kuruppampady, alleging that victim was blackmailing the petitioner-accused for money.

'G' series documents highlighted the observations of the High Court regarding "conduct" of the de facto complainant in a bail application BA 2347/2016; and 'F' series documents reflected that the same de facto complainant has also lodged a complaint before the Women's Commission.

It was contended that these would show that the de facto complainant was daring enough to approach any forum, and her conduct and character was significant in this case where there has been a significant delay.

Prosecution Response

The Additional Public Prosecutor K.L. Hareeshkumar, on the other hand, contended that the character of the victim is not relevant under Section 53-A of the Evidence Act.

It was further submitted that all ingredients for prima facie attracting an offence under Section 376 (2) (n), 362 and 354 of the IPC were made out in the instant case, and the delay in registering the FIR was only indicative of the power and authority wielded by the petitioner-accused.

It was further submitted that the SHO, Kovalam, also attempted to settle the issue by allegedly paying money to the victim. Further, it was submitted that in the man missing complaint that had been registered, the victim was traced out and she had given her statement before the Magistrate, which clearly showed that the ingredients of Section 376(2)(n) were made out.

It was also argued that if the petitioner accused is released on anticipatory bail, he would have innumerable chances for tampering with evidence and intimidating witnesses. It was contended that since the call records and social media accounts of the petitioner-accused are required to be investigated, custodial interrogation was necessary.

The Court said allegations raised by the accused to attack the character and conduct of the victim are not relevant under Section 53-A of the Evidence Act and therefore the arguments made by the counsel of petitioner by tendering documents does not deserve a comment in the order.

Case Title: Eldhose Kunnappilly v. State of Kerala & Ors.