Kerala High Court Grants Bail To POCSO Accused, Doubts Fabrication Of Prosecution Case

The Kerala High Court on Wednesday granted bail to a person accused of offence under the Protection of Children from Sexual Offences Act (POCSO Act), on doubting the veracity of the prosecution version. 

Justice Kauser Edappagath took note that the victim in the case had given a complaint to the police for the first time after more than five years after the alleged incident. 

"There is absolutely no allegation of rape alleged to have been taken place in the year 2017. It appears that on the next day, a crime was registered against the victim on the complaint of the applicant for the offence punishable under Section 326 of Indian Penal Code as Crime No. 2148/2022". 

The factual matrix reveals that the petitioner had allegedly sexually assaulted his sister in law on three occasions when his wife had been hospitalized in connection with her delivery. A crime was accordingly registered against him alleging offences under Sections 354, and 354A IPC, and Sections 9(I)(n) read with Section 10 and Section 6 read with Section 5(I)(n) of the POCSO Act. 

It was contended by Advocate Navaneeth N. Nath on behalf of the petitioner that the petitioner had been falsely implicated, and that there were no materials on record to connect the petitioner/applicant with the alleged crime. 

Public Prosecutor V.S. Sreejith on the other hand, argued that the alleged incident occurred as a part of the intentional criminal acts of the petitioner, and he would thus not be entitled to bail. 

The Court took note that the victim had given the complaint only on December 29, 2022, for the first time, more than five years after the alleged incident pursuant to which the crime was registered against the petitioner. However, it further noted that there was no allegation of rape alleged to have been taken place in 2017. Subsequently, the petitioner had also complained against the victim pursuant to which a crime was registered against the latter.  The Court noted that it was thereafter that the petitioner gave a statement to the police in the crime registered against him. 

"All these sequence of events give rise to doubt as to the fabrication of the prosecution case. It is true that, the petitioner is a habitual offender and he is involved in another ten cases. However, considering the fact that the prosecution version is doubtful and the applicant has been in custody for the last more than 35 days, I am inclined to grant bail to the applicant," the Court held. 

It thus declared that the petitioner shall be released on bail on executing a bond for Rs.1,00,000/- with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Magistrate/Court. 

Other bail conditions were also imposed by the Court. 

Advocates Sanel Cherian and K.S. Stejo also appeared on behalf of the petitioner in this case. 

Case Title: XXX v. State of Kerala 

Citation: 2023 LiveLaw (Ker) 128

Click Here To Read/Download The Order