IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE K.N.PHANEENDRA CRIMINAL PETITION NO.5027/2019 Between:
B.N.Yogesh @ Yogi, S/o Narase Gowda, Aged about 23 years, Residing at Byranayakanahalli, Begur Post, Kunigal – 572 130, Tumakuru District.
Also at C/o Lakshmana, 16th Cross, Pipeline, Srinivasanagar, Sunkadakatte, Bengaluru – 560 091. ... Petitioner (By Sri. Ramesh H.N., Advocate) And:
The State of Karnataka, By Vijayanagara P.S., Represented by State Public Prosecutor, High Court of Karnataka, Bengaluru – 560 001. ... Respondent (By Sri. K.P.Yoganna, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.87/2019 of Vijayanagar Police Station, Bengaluru City for the offences P/U/S 363, 366-A, 376 of IPC and Sections 4 and 6 of POCSO Act.
This Criminal Petition coming on for orders this day, the Court made the following:
O R D E R Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent – State. Perused the petition.
2. The charge sheet has been laid against the petitioner for the offences punishable under Sections 363, 366A 376 and also under Sections 4 and 6 of the POCSO Act. The age of the victim was 17 years as on the date of commission of the alleged offences.
3. The brief facts of the case are that CW.2 is the victim girl and she has developed friendship and love affair with the petitioner herein and it is alleged that the same came to the knowledge of the parents of the victim girl. In that context, when the victim girl herself informed the same to the petitioner, he took her to various places and have had sexual intimacy with her. It is specifically alleged that on 29.3.2019 in the afternoon when the victim had been to the New Public English School at Bengaluru to write exams, the accused took her forcibly in his Active Honda to Kunigal and from there they went to Dharmasthala and stayed there in a lodge and had physical contact with each other. On these allegations as the victim was below the age of 18 years, a charge sheet has been laid. During the course of investigation, the Police have also got recorded the statement of victim girl under Section 164(5) of Cr.P.C. wherein she has very categorically stated that she fell in love with the petitioner and she actually forced him to take her and marry her and in that context they went together and there is no fault on the part of the accused. However, the fact remains that she was aged below 18 years. But perusal of the materials on record, reveals that there are two reports available with regard to the age of the victim girl. Her birth certificate states that she has not crossed 17 years. But according to the report of the Department of Forensic Medicine OBG Department, Vanivilas Hospital, Bengaluru as well as radiology report she has already crossed 17 years. Therefore, it has to be established during the course of trial that she had not crossed 18 years and she was below 18 years. Therefore, considering the margin of error as she has crossed 17 years and she was capable of take her own decision is also established during the course of trial. Therefore, in the facts and circumstances of the case and the nature of allegations made and the conduct of the accused as well as conduct of the victim girl, in my opinion, the petitioner is entitled to be enlarged on bail particularly under Section 439 of Cr.P.C. Hence the following:
O R D E R The Petition is allowed. Consequently, the petitioner shall be released on bail in connection with Spl.C.C.No.581/2019 (arising out of Crime No.87/2019 of Vijayanagar Police Station) pending on the file of LIV Additional City Civil and Sessions Judge, Bengaluru City registered for the offences punishable under Sections 363, 366 and 376 of IPC, subject to the following conditions:
(i) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with one surety for the like- sum to the satisfaction of the jurisdictional Court.
(ii) The petitioner shall not indulge in tampering the prosecution witnesses.
(iii) The petitioner shall appear before the jurisdictional Court on all 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.
Sd/- JUDGE RS/*