IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL PETITION NO.8174 OF 2019 BETWEEN:
ABHISHEK @ ABHI, S/O LATE KALEGOWDA, AGED ABOUT 23 YEARS, R/A RAMADAS RENTED HOUSE, 7TH CROSS, HAROHALLI, BANGALORE - 560040. ...PETITIONER (BY SRI D.MOHAN KUMARA, ADVOCATE FOR SRI GAJENDRA C V, ADVOCATE) AND:
THE STATE OF KARNATAKA, BY RAJAGOPALANAGARA P S, REPRESENTED BY HIGH COURT GOVT PLEADER, HIGH COURT OF KARNATAKA, BANGALORE - 560001. …RESPONDENT (BY SRI M DIVAKAR MADDUR, HCGP) **** THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.PC PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.153/2018 OF RAJAGOPAL NAGAR P.S., BENGALURU CITY FOR THE OFFENCE P/U/S 363,366,376 OF IPC AND SECTION 6 OF POCSO ACT AND ETC., THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition has been filed by the petitioner under Section 439 of the Code of Criminal Procedure to enlarge him on bail in Crime No.153/2018 of Rajagopalnagar Police Station for the offences punishable under Sections 363, 366, 376 of Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012.
2. I have heard learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State.
3. The factual matrix of the complaint are that, on 17.03.2018, the mother of the victim filed a complaint alleging that her victim daughter aged about 17 years called her grandmother over the phone and informed that she is going with Abhi and not to search for her. On the basis of the said information, a missing complaint was filed and a case was registered in Crime No.153/2018. Subsequently, during the course of investigation, the accused and victim were apprehended and the statement of the victim was recorded and after investigation, the chargesheet has been filed.
4. The main grounds urged by the learned counsel for the petitioner/accused is that the victim is aged more than 17½ years and that the accused and victim have fallen in love with each other and that it is a consensual sex. It is his further submission that absolutely there is no prima facie material to come to the conclusion that the accused has eloped the victim and had sexually assaulted the victim. It is his further submission that earlier, the petitioner/accused approached this Hon’ble Court in Criminal Petition No.7571/2018 and in another Criminal Petition No.5416/2019 and the said cases have been got withdrawn with liberty to file fresh bail application after examination of the victim. Now the victim has been examined before the Court below as PW2 and in her evidence, she has not supported the case of the prosecution and she has been treated as hostile. Even during the course of cross-examination, nothing has been elicited so as to sustain the case of the prosecution. The mother of the victim has also been examined as PW1 and she has also not clearly deposed, on the contrary, she has supported the case of the accused by contending that the accused and the victim knew each other and they were coming together and the said fact was also within the knowledge of the complainant. It is his further submission that he is ready and willing to abide by the conditions that may be imposed by the Hon’ble Court for granting bail. On these grounds, he pray to allow the petition and to release the petitioner on bail.
5. Per contra, learned High Court Government Pleader submits that the accused/petitioner has won over the witnesses and as such, the victim has not supported the case of the prosecution. It is his further submission that, the Doctor who examined the witnesses has clearly stated that the hymen of the victim was not intact. It is his further submission that the Doctor and other material witnesses have to be examined to putforth the case of the prosecution. It is his further submission that, the materials are produced to substantiate the case of the prosecution. On these grounds, he prayed to dismiss the application.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the petitioner and learned High Court Government Pleader and perused the records.
7. Learned counsel for the petitioner has made available the deposition recorded by LIV Addl. City Civil & Sessions Judge, Bengaluru, in Special C.C. No.465/2018. In the said case, the complainant-
mother has been examined as PW1 and in her examination-in-chief, nothing has been elicited and even during the course of cross-examination, she has admitted that the victim had been to the sister’s house without telling to her and from there she has come directly to the house and no problem has been caused by the accused. She has further admitted that she has not given any statement to the police and she has not gone to the Police Station. The victim has been examined as PW2 and in her evidence also, she has not identified the accused and no such incriminating material has been stated as against the accused. Though it is contended by the learned High Court Government Pleader that some more witnesses are to be examined including the Doctor, but by taking into consideration the fact that the victim has not supported the case of the prosecution and the complainant-mother has also not supported the case of the prosecution.
Under these circumstances the accused languishing in jail is not necessary.
8. In the circumstances, the petition is allowed and the petitioner/accused is ordered to be released on bail in Crime No.153/2018 of Rajagopalnagar Police Station for the offences punishable under Sections 363, 366, 376 of Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012, subject to the following conditions:
(i) The petitioner shall execute his personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with Two sureties for the like-sum to the satisfaction of the jurisdictional Court.
(ii) The petitioner shall not tamper the prosecution witnesses.
(iii) The petitioner shall appear before the jurisdictional Court on all the future hearing dates unless exempted by the Court for any genuine cause.
(iv) The petitioner shall not leave the jurisdiction of the trial Court without prior permission of the Court till the case registered against him is disposed of.
(v) He shall mark his attendance once in a month on every first day of the month till disposal of the case.
Sd/- JUDGE SJ