IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.8182 OF 2018 BETWEEN:
B S Dhananjaya S/o Shivaraju Aged about 25 Years, R/at Beerasandra palya Tiptur Taluk Tumkur District-58 ... Petitioner (By Sri. Pratheep.K.C, Advocate) AND:
The State of Karnataka Rep. by Rajgopalnagar Police Station Begaluru Rep. by its State Public Prosecutor High Court of Karnataka Bangalore-01. ... Respondent (By Sri. M.Divakar Maddur, HCGP) This Criminal Petition is filed under Section 439 of the Code of the Criminal Procedure Code praying to enlarge the petitioner on bail in Cr.No.62/2018 of Rajagopal Nagar Police Station, Bengaluru City for the offences punishable under Sections 366, 376 of IPC and Section 6 of POCSO Act.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R The present petition has been filed by the petitioner-accused under Section 439 of Cr.P.C. seeking to release him on bail in Crime No.62/2018 of Rajagopal Nagar Police Station for the offences punishable under Sections 366, 376 of IPC and also under Section 6 of Protection of Children from Sexual Offences Act, 2012.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.
3. The gist of the complaint is that three to four months prior to lodging of the complaint, the complainant-victim was in love with the petitioner. The petitioner-accused took the victim to his room and sexually assaulted her three to four times, but the said fact was not informed to her parents. On 08.02.2018, the victim felt tired and as such, she was taken to ESI Hospital, there the Doctor after checking her confirmed that the victim was pregnant. On the basis of the complaint, a case was registered.
4. It is the submission of the learned counsel for the petitioner that prior to the alleged incident, the petitioner and the victim were in love with each other, at the time of the alleged incident, the victim was aged about 16 years and she was knowing the consequences. He further submitted that the statement of victim was recorded by the learned Magistrate under Section 164 of Cr.P.C on 21.04.2018, in the said statement, the victim has not specifically stated the name of the accused- petitioner. Even when the complaint was filed, it has been alleged that one day she was taken by four unknown boys by tying her mouth and closing her eyes with cloth and by taking her to some distance place, one person among them sexually assaulted her and other three accused persons were holding her. There is inconsistency in the statement of the victim. He further submitted that already the charge sheet has been filed and if the statement of the victim which was subsequently recorded on 22.02.2018, after recording the statement under Section 164 of Cr.P.C, she has clearly stated the accused and victim were in love with each other and one day, the accused took her on a motor bike to his room at Byraveshwaranagar, Laggere and there, he committed a sexual attack on her and again three times he took her to the room and sexually assaulted. All these material clearly goes to show that it is a consensual sex and the accused has not raped the victim. The accused-petitioner is ready to marry her and even the said contention has also been mentioned in the criminal petition. The accused-petitioner is ready to abide by the conditions imposed on him by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner-accused on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the accused-petitioner has three to four times sexually assaulted the victim who was a minor and as a result of the same, she became pregnant and thereafter, the complaint has been registered. The material which has been produced clearly goes to show that the accused- petitioner is involved in a serious offence of sexual assault committed on the victim. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and other materials, which has been produced along with the petition.
7. On close reading of the complaint, the complaint discloses the fact that four unknown persons took the victim and one person among them sexually assaulted and dropped her back and left the place. Under Section 164 of Cr.P.C statement recorded on 21.04.2018, she has not whispered neither the name of the accused nor any other person. If really she was knowing the accused-petitioner since two to three months prior to the incident and if he had taken her to the room and sexually assaulted as contended in her further statement, definitely she could have disclosed the name of the accused-petitioner when she was taken to ESI Hospital and checked in the presence of her parents. Even as could be seen from the statement which has been recorded on 22.02.2018, it reveals that when the victim was proceeding to the school, she came in contact with the accused-petitioner and they started loving each other, later he took her to his room and sexually assaulted her. As on the date when the said incident has taken place, she was aged about 16 years. When she was 16 years, she was in love and moving along with the petitioner-accused, she was aware of the fact and that too she has been taken two to three times to the room and was sexually assaulted. If really, it was a forceful sexual assault definitely, she could have informed her parents. All these material indicates that it is a consensual sexual assault. Already the charge sheet has been filed and under such circumstances, I feel that by imposing some stringent conditions, if the accused- petitioner is enlarged on bail, it is going to meet the ends of justice.
In that light, Criminal Petition is allowed. Petitioner-accused is enlarged on bail in Crime No.62/2018 of Rajagopal Nagar Police Station for the offences punishable under Sections 366, 376 of IPC and also under Section 6 of Protection of Children from Sexual Offences Act, 2012, subject to the following conditions:
1. Petitioner/accused shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two lakhs only) with two sureties for the likesum to the satisfaction of the trial Court.
2. He shall not leave the jurisdiction of the Court without prior permission.
3. He shall mark his attendance once in 15 days every month between 10.00 a.m., to 5.00 p.m., till the trial is concluded.
4. He shall not tamper with the prosecution evidence directly or indirectly.
5. He shall not indulge in similar type of criminal activities.
Sd/- JUDGE RB