Monday, July 24, 2017

HC Declines Bail to Actor Dileep [READ ORDER]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                         THE HONOURABLE MR. JUSTICE SUNIL THOMAS

                  MONDAY, THE 24TH DAYOF JULY2017/2ND SRAVANA, 1939

                                         Bail Appl..No. 5098 of 2017 ()
                                              -------------------------------
   CRIME NO. 297/2017 OF NEDUMBASSERY POLICE STATION, ERNAKULAM DIST.
                                                           .......


PETITIONER/ACCUSED:
------------------------------------

                     P.GOPALAKRISHNAN @ DILEEP,
                    AGED 49 YEARS, S/O.G. PADMANABHA PILLAI,
                    PADMASAROVARAM HOUSE, KOTTARAKADAVU ROAD,
                    ALUVA, ERNAKULAM DISTRICT.


                     BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE.
                          ADVS. SRI.T.RAMPRASAD UNNI,
                                    SRI.S.M.PRASANTH,
                                    SRI.M.MANOJKUMAR (CHELAKKADAN),
                                    SMT.R.S.ASWINI SANKAR.

RESPONDENTS/STATE & COMPLAINANT:
------------------------------------------------------------

        1.           STATE OF KERALA,
                     REPRESENTED BY THE PUBIC PROSECUTOR,
                     HIGH COURT OF KERALA, ERNAKULAM-682 031.

        2.           THE STATION HOUSE OFFICER,
                     NEDUMBASSERY POLICE STATION,
                     ERNAKULAM DISTRICT.


                 BY SRI.C. SREEDHARAN NAIR, DIRECTOR GENERAL OF PROSECUTION.


                    THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
                    ON 20-07-2017, THE COURT ON 24/07/2017 PASSED THE
                    FOLLOWING:
rs.



                      SUNIL THOMAS,J
                      ------------------------
                    B.A.No..5098 of 2017
                     --------------------------
            Dated this the 24th day of July 2017

                           O R D E R



      The 11th accused in Crime No.297/2017 of Nedumbassery

Police station for offences punishable under sections 120(B),

342,366,376(D),411,506(1),201,212 & 34 IPC and sections 66

(E) & 67(A) of the Information Technology Act,2008,is the

petitioner herein.

      2. The crux of the prosecution case, as is discernible

from the available records, is as follows:

      3. The petitioner herein is a prominent Malayalam cine

artist, having acted in several films in the main role. The

victim is an unmarried, well known cine actress, who has

several films to her credit. The petitioner herein had married

a leading actress and a child was born in the matrimonial

relationship. Subsequently, matrimonial disputes arose in

their family, ultimately leading to a judicial separation. The

petitioner herein suspected that, the victim herein, who was a

close friend of his erstwhile wife, was instrumental in the

disruption of his matrimonial life. To wreak     vengeance, he

allegedly conspired with      the first accused, to abduct the

victim and to take her nude photographs, on an offer that, the

BA No.5098/2017                2

first accused would be paid Rupees One and Half Crores. The

first accused was a driver, who used to get associated with

film production units, and had a criminal track record.

      4. On 17/2/2017, at about 7 p.m., the victim started from

her house at Thrissur to proceed to Cochin, in a Mahendra

XUV.vehicle, sent to her by the film production unit, to join

the work in a film. The vehicle proceeded along the National

Highway. The second accused was the driver of that

vehicle,who was a stranger to the victim. It is alleged that,

the first accused and his co-accused waited in a van near the

Airport Junction and when the vehicle of the victim reached

the spot, the first accused stage managed a fake accident, by

hitting the van on the rear side of the XUV. Thereafter, third,

fourth and sixth accused forcefully entered into the vehicle

and wrongfully confined the victim to the rear seat. They

drove the vehicle towards the Kochi city, followed by the van

driven by the first accused.     Thereafter, the first accused

entered the vehicle and sexually molested her in the moving

vehicle. While she was being sexually abused, first accused

simultaneously video graphed with his mobile phone the entire

incident, with close shots of the body of the helpless victim.

In the course of the sexual act, he had directed her to co-

BA No.5098/2017                3

operate with him and divulged that, it was done by him on a

quotation entrusted to him, by another person. The ordeal of

the victim continued upto 11 p.m., in spite of her persistent

plea for release. She was thereafter left off by the      main

accused.     The second accused driver took the mentally

shattered victim to the house of a film director, to whom she

revealed the entire episode.    Immediately, the matter was

informed to the police.

     5. FIS of the victim was recorded on 18/2/2017 at 3

a.m.and she underwent medical examination. Investigation

commenced.      Her statement under section 164 Cr.P.C.was

also recorded before the Magistrate. It emerges that, in the

course of the    incident, the victim had identified the first

accused, who had earlier driven her car while she was on a

film shooting at Goa. In the course of investigation, the driver

was arrested, which ultimately led to the arrest of seven

persons. Arraying them as accused, final report was laid on

17/4/2017. Accused 1 to 6 were        the persons who were

involved in the main crime and seventh accused was charged

with offence of harbouring the accused.

     6. In the final report, it was clarified that, an advocate

was also involved in the crime, against whom a separate

BA No.5098/2017                 4

charge sheet was proposed to be filed.        The right of the

investigating agency to investigate into the larger conspiracy

was also reserved.      The matter is     now pending as CP

No.17/2017     of  Judicial  First Class Magistrate Court,

Angamaly. The investigation into the conspiracy, however,

continued. The involvement of the petitioner herein was not

revealed at that time.

     7. In the meanwhile, on 22/4/2017, the petitioner herein

submitted a written        complaint dated 20/4/2017, to the

Director General of Police, alleging that, few social media

groups and unknown sources were trying to defame him and

harass him in connection with the above incident involving

the film actress. It was stated that, his friend Nadirshah had

received a telephone call from one Vishnu, claimed to be on

behalf of the first accused, seeking financial help, with a

threat that in case of failure, to connect the petitioner herein

with the above case. Further, on 18/4/2017, his driver

Appunni had received a letter by Whats up, allegedly written

by the first accused addressed to the petitioner, demanding

two crores of Rupees from him and in case of failure, to spoil

the career of the petitioner.

     8. In the course of investigation, the petitioner herein,

BA No.5098/2017                5

Nadirshah and Appunni were questioned in detail. Thereafter,

the petitioner was arrested on 10/7/2017 on an allegation that,

the petitioner had engaged the first accused to take nude

photographs of the victim on an offer to pay Rupees One and

Half Crores. A sum of Rs.10,000/- was allegedly paid by the

petitioner as advance in December,2015. Petitioner is in

custody since the date of arrest. The petitioner, contending

that he is absolutely innocent and is sought to be roped in the

crime consequent to a deep rooted conspiracy, seeks bail.

      9. It was contended by the learned senior counsel for the

petitioner that, none of the 19 circumstances mentioned in

the remand report was connected with the petitioner. There

was not even an iota of evidence to connect him with the

incident, much less, with any part of the conspiracy. It was

further contended that, even assuming that the first accused

was available at places where the petitioner, himself being a

popular artist, was present, that by itself is not sufficient to

establish conspiracy. It was further contented that, the

petitioner was questioned initially for 13 hours and

subsequently for ten hours, prior to his arrest. Thereafter, he

was given the police custody for three days. Hence, the

petitioner is not required   any further, for the purpose of

BA No.5098/2017                 6

investigation and consequently his further custody is not

justified, contented the learned senior counsel.

      10. Per contra, learned Director General of Prosecution

contended that, the petitioner is the king pin of the crime. He

had given quotation to the first accused, a known criminal, to

commit     the   nefarious    crime.  It was contended that,

engaging criminals on quotation for committing sexual abuse

on a victim to wreak vengeance was unheard of.           It was

further contended that, there were cogent,clinging, direct,

indirect, circumstantial and scientific evidence to establish

that the petitioner had conspired with the first accused .

      11.No doubt, conspiracy is hatched in secrecy and direct

evidence is rarely available. The prosecution is trying to allege

the conspiracy and to connect the petitioner herein with the

case, on the basis of circumstantial evidence. It emerges

that, investigating agency is proceeding on a premise that, the

petitioner herein had a definite stand that he did not know the

first accused and never had occasion to meet him.       Another

premise on which the investigation proceeded was that, the

complaint dated 20/4/2017 submitted by the petitioner to the

Director General of Police was a clever move to preempt a

possible revelation of the involvement of the petitioner in the

BA No.5098/2017                  7

crime, by the first accused.    The learned Director General of

Prosecution relied on the materials available on record to

contend that investigation has gathered sufficient materials to

establish the role of the petitioner in the conspiracy. They fall

into two categories. Those       materials prior to the actual

commission of offence and the conduct of the accused

subsequent to the commission of offence.

     12. Definitely, the incident that happened on 17/2/2017

is very serious. A young actress was abducted in the busiest

National Highway, taken through the city for about two and

half hours, subjected to the shocking ordeal of sexual assault

and video graphed, inside a moving car. The victim had

identified the first accused in the car itself.    At the initial

stage itself, matter was reported to the police and the second

accused driver whose conduct appeared to be doubtful was

arrested, immediately after the incident. The commission of

crime is so cruel and diabolic        and liable to shake the

conscience of the society.

     13. The investigation agency alleges that, the petitioner

herein had a definite motive to commit crime. It was alleged

that, the petitioner herein suspected that the victim       was

instrumental for the disruption            of his matrimonial

BA No.5098/2017                 8

relationship.  The petitioner believed that, the victim had

spoiled his family life by conveying information about the

petitioner to the former wife. There are enough materials

available on record to show that, the relationship of petitioner

with victim was strained. There are versions of few persons

that, the victim lost few       opportunities to act in films

thereafter, which affected her professional career also.

      14. The conspiracy angle is sought to be established by

alleging that the petitioner herein had met the first accused at

five different specified places, where the conspiracy was

hatched. One was in a hotel wherein the petitioner allegedly

instructed the first accused to commit the act and offered to

pay the huge amount. Hotel records are relied on by the

prosecution to establish that room was booked in the name of

the petitioner herein. The presence of both the petitioner and

the accused at all the five places at the same time is sought to

be established by call record details, tower location of mobiles

or by direct oral evidence, gathered by the investigation. The

disclosure made by the first accused about the conspiracy

hatched with the petitioner, in the investigation and those

made to others have led to discovery of several crucial

materials and facts.

BA No.5098/2017                 9

      15. The prosecution has a case that, the tenor and tone

of the letter allegedly sent by the first accused did not

evidence that it was in the form of a threatening letter or

intended to blackmail the petitioner. Versions of          some

persons, to whom first accused         allegedly disclosed the

conspiracy, are available. It is on record that, after the arrest

of the first accused, a mobile phone was stealthily taken inside

the jail by first accused and he had contacted several persons.

Call details both of the above mobile phone and that from the

coin box land line provided in the jail show the continuous

phone calls made       by the first accused to few doubtful

persons,some persons connected with the petitioner and inter

se calls among them. Details of several inter connected phone

calls are also unearthed by the investigating agency, with the

tower location of each person.    Details of attempts made by

Vishnu to contact petitioner through few sources are also on

record. Records indicate that the first accused had written

the letter from the jail itself.     Materials to indicate that,

immediately after the commission of crime, the accused along

with a co-accused had attempted to hand over the mobile and

memory card to the associates of petitioner.

      16. The above facts, show that prima facie there are

BA No.5098/2017                10

materials to suspect the involvement of the petitioner in the

crime. Investigation is still progressing. It is still at a crucial

stage. It was submitted by the learned Director General of

Prosecution that, the manager Appunni is absconding and the

lawyer involved has to be effectively questioned. The

possibility of implicating other persons in the crime has also

not been ruled out by the learned DGP. Investigation seems to

be progressing.

     17. The case is unique, considering its seriousness,

meticulous planning, cruel nature of execution and being a

crime executed to wreak vengeance on a woman by engaging

criminals, to    sexually abuse     her.    Courts have to be

circumspect in granting bail in such cases.

     18.There is yet another major reason which prompts

rejection of bail application.    The crucial material object

which is the mobile phone used for recording the sexual

assault and the memory card in which the video graphed

materials are stored have not been recovered. The memory

card is a potential threat to the life of the victim and there is

every possibility of any of the accused attempting to interfere

in the investigation and the prosecution with the memory

card.

BA No.5098/2017                  11

     18.     The petitioner, being a noted film actor, is also

involved in the distribution and production of films and is

also owner of a      theater. Definitely, he must be wielding

considerable command on the industry. Hence, the possibility

of the petitioner influencing or threatening the several

witnesses, who are also from the same industry, cannot be

ruled out.

     Having considered the above facts, I feel that it is too

early at this stage to grant bail to the petitioner. Accordingly,

bail application fails and is dismissed.

                                        Sd/-

                                   SUNIL THOMAS
                                        Judge.
Dpk                          /True copy/          PS to Judge.




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