Sexual Intercourse with a girl aged below 16 years

The Kerala High Court on August 8, 2011 in Sunny Vs. State, 2011 (3) KLT 885 : 2011 (3) KLJ 531 : ILR 2011 (3) Ker. 778 has dismissed bail applications filed by several accused involved in the notorious North Paravur gang rape case.

The Hon’ble Mr. Justice K.T.Sankaran observed that there are enough materials to arrive at the prima facie conclusion that the petitioners are involved in the offence. At this stage, it cannot be expected to explain the role of each and every accused with precision and with all particulars, particularly when there are about 150 accused in the case and when the case involves complex factual situation.

“The petitioners are allegedly rich and influential people. If they are released on bail at this stage, it is most likely that they would terrorise, intimidate or influence the witnesses and tamper with the evidence. It is also likely that the petitioners would make themselves scarce and flee from justice”, the Court said.

These Bail Applications are filed under Section 439 of the Code of Criminal Procedure by accused Nos. 45,103, 47, 114 and 104 in CBCID Crime No.111/CR/HHWII/EKM/11 (North Paravoor Police Station Crime No.346 of 2011). The offences alleged against the accused are under Sections 366-A, 354, 372, 373, 376 (2) (g), 506 (i), 342 and 202 read with Section 34 of the Indian Penal Code and Section 23 of the Juvenile Justice (Care and Protection of Children) Act.

# Sexual Intercourse with a girl aged below 16 years

# Prosecution Case

The victim, a girl aged below 16 years, was taken to several places within the State and in the neighbouring States under force and threat and she was compelled to have sexual intercourse with several persons against her will and without her consent for the period from 3-5-2010. The First Information Statement was given by the victim on 7-3-2011.

The father of the victim is a real estate broker and a person who supplies junior artists to film makers. On 3-5-2010, the victim was taken by her father to a hotel at Panampilly Nagar, Ernakulam, stating that they had to meet `film people’. After leaving the victim in the room in the hotel, father of the victim left the place. The victim was raped by the man who was in the room.

Thereafter, on that date and on the following days, she was taken to several places in and around Ernakulam city, Mysore, Ooty, Thiruvananthapuram, Kannur, Chalakkudy, Athirappilly, Munnar, Bangalore, Thrissur, Mapranam, Coimbatore etc. On 1-1-2011, the father of the victim took her to Coimbatore and entrusted her to a man and woman. They took the victim to a house where she was locked. She was subjected to forceful sex by twelve persons who visited the house. The victim escaped from that house and after reaching her native place, she disclosed the matters to her paternal uncle and other relatives. They advised the victim to inform the matter to the police.

The victim stated in the First Information Statement that her father used to entrust her with some brokers. The mother of the victim, initially opposed the misdeeds of her husband, but she was silenced by meting out cruelty to her by her husband. The father of the victim also threatened and terrorized the victim and her brother. On one occasion, the victim was taken by his father to Varapuzha bridge and he threatened that the victim would be thrown to the river. The father used to hang the brother of the victim upside down on the fan to pressurize the victim to go for sex work.

The victim also stated in the First Information Statement that her father used to give her pills to prevent pregnancy. The victim had even to undergo treatment in two hospitals as a result of subjecting her to excessive sexual intercourse. The victim stated that her father used to receive money for presenting her to several persons.

The Court heard Sri.K.Abdul Jawad, Sri.M.T.Suresh Kumar, Sri.K.Sunil Kumar, Sri.Mansoor.B.H. and Anil K.Muhamed, learned counsel appearing for the petitioners, and Sri.V.Tekchand and Sri.V.Manu, the learned Public Prosecutors.

# Accused No.45

The allegation against Accused No.45 Sunny (Petitioner in B.A. No. 5786 of 2011) is that he, along with Anoop (accused No.150), procured the victim girl with the help of Omana (Accused No.14). The girl was taken in a car to Vengoor, where Sunny owns a property. They subjected the girl to sexual abuse. They gave Rupees Five hundred as tip to the girl and Rupees Five thousand to Omana, the pimp. It is alleged that Sunny contacted one Lissy, who arranged a shed near Vengoor Dam, where the offence was committed.

# Accused No.103

Rajasekharan Nair @ Rajan (accused No.103) is aged 70 years. He was working in Navy. He purchased a property very near to the house of the victim. The property was purchased with the help of accused No.1, father of the victim. The family of the victim and accused No.103 became close to each other. The father of the victim requested for the help of accused No.103 to advise the victim girl against the excessive use of mobile phone by her. It is alleged that under the pretext of advising the victim, accused No.103 could manage to get a convenient place in the house of the victim. He made sexual advances to the victim and eventually he had sexual intercourse with the girl on different occasions. The victim girl used to call accused No.103 “appooppan” (grandfather).

Sri.Mansoor.B.H., the learned counsel appearing for accused No.103, submitted that there is no mention in the First Information Statement or in the statement of the victim under Section 164 of the Code of Criminal Procedure about the complicity of accused No.103. The said accused is a mahazar witness. The counsel submitted that accused No.1, the father of the victim, after his release on bail, demanded Rupees Two lakhs from the accused and he is implicated in the case only on the ground that he refused to accede to the illegal demand of accused No.1.

# Accused No.47

The allegation against accused No.47 R.Mohan Kumar is that he had sexual intercourse with the victim girl at Coimbatore. It is alleged that accused No.32 Shaji procured the girl and handed over to accused No.47. The victim was detained by accused No.32 Shaji and his wife Jessy (accused No.15). It is alleged that Shaji and Jessy are involved in a sex racket. They were involved in Kanjikode sex scandal in the year 2002. They shifted to Coimbatore and purchased a house, where the immoral activities are facilitated. It is alleged that accused No.47 R.Mohan Kumar, who conducts real estate business in Coimbatore, took the girl to a storied building where he conducts the real estate office. He had sexual intercourse with the girl in the bedroom in the upstair of that building.

Sri.M.T.Suresh Kumar, the learned counsel appearing for accused No.47, submitted the following: Accused No.47 was falsely implicated in the case at the instance of accused No.32 Shaji, with whom Mohan Kumar is on inimical terms. Even going by the prosecution case, the victim accepted remuneration and that implies her consent. The allegation is that accused No.47 had sexual intercourse with the girl in February, 2011. By that time, she had attained sixteen years of age. Therefore, Section 376 of the Indian Penal Code is not attracted.

Read Also : Illicit Intercourse within the meaning of Section 373 IPC

The learned counsel also submitted that Section 373 of the Indian Penal Code is also not attracted, since, according to the counsel, the expression “illicit intercourse” in Explanation II to Section 373 should be read along with the expression “prostitution” occurring in Section 373. The counsel submits that unless the girl is employed for prostitution, the procurer is not guilty under Section 373, even if he had sexual intercourse with the girl.

# Accused No.114

Accused No.114 Maideen is a dealer in scrap. It is alleged that he has acquaintance with Omana (accused No.14). Omana and the father of the victim arranged the victim to Maideen who had sexual intercourse with the girl in his bedroom. It is alleged that Maideen paid Rupees Five thousand to the father of the victim and Rupees Five hundred as tip to the girl.

Advocate Sri.Abdul Jawad, learned counsel appearing for accused No.114, submitted that there is nothing to indicate that the accused knew or had reason to believe that the victim was below the age of sixteen years. There is no material to arrive at the conclusion that the accused had sexual intercourse with the girl knowing her to be under the age of sixteen years. The counsel submitted that accused No.114 suffered heart attack on three occasions.

# Accused No.104

Magudeswaran, accused No.104, had sexual relationship with the girl on two occasions, one in the house of Julie (accused No.105) and on another occasion in a lodge near Chottanikkara. Julie procured the girl for Magudeswaran, who is a professional money lender.

 

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