IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL PETITION No.5649/2019 BETWEEN:
K.Abdul Nabi Khan@ Baba Abdul Nabi Khan, S/o late Khaleelulla Khan, Age 35 years, Residing at No.333, 3rd Floor, BDA Quarters, Neelsandra, Bengaluru-560 047.
Also Residing at:
No.14, South Cross Street, R.K.Garden, Neelsandra, Bengaluru-560 047.
(By Sri.A.S.Kulkarni, Advocate) AND:
1. The State of Karnataka, By Ashoknagar Police Station, Bengaluru-560 025 Represented by State Public Prosecutor High Court Building, Bengaluru-560 001.
…Petitioner 2. Smt.Bibi Ayesha Khanum C/o Babu No.333, B Type, 1st Stage, 3rd Floor, BDA Flat, Austin Town, Bengaluru-560 047.
(By Sri.Rohith.B.J., HCGP for R1 Sri.Ashok G.V., Advocate for R2) …Respondents This Criminal Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail Cr.No.146/2019 (Spl.C.C.No.775/2019) of Ashok Nagar Police Station, Bengaluru City for the offence p/u/s 498A, 376(3), 506 of IPC and Sections 4, 6, 8, 10 and 12 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 learned HCGP for the respondent-State. Perused the records.
2. The charge-sheet has been laid against the petitioner who is the sole accused in Crime No.146/2019 (Spl.C.C.No.775/2019) for the offence punishable under Sections 498A, 376(3), 506 of IPC and Section 4, 6, 8, 10 and 12 of POCSO Act.
3. The petitioner is none other than the father of the victim girl. Victim girl is shown as CW5 in the charge-sheet. The allegations are that the complainant and the petitioner married about 14 years back and they begot three children. The victim girl is one amongst them. Earlier they were residing together and as there was some differences arose between them and the petitioner was inciting for unnatural sexual activity with the wife, she refused for the same. He forced the complainant to go out of the house along with children. CW1 in fact, went away as the petitioner has assaulted her on 25.10.2018. Thereafter, two days later, the petitioner again went to the house of complainant and brought them back to the house situated at Neelasandra, Banian Basha Galli, Bengaluru. In fact at that time, when the victim girl, her brother as well as the petitioner were sleeping in the house, as alleged, petitioner-father of the victim girl committed sexual activity with her even though there was resistance by CW5 -the victim girl, in spite of that he made attempts to forcibly insert his private part to the private part of the CW5. This act of the petitioner continued for a period of 6 to 7 days. However, no complaint has been lodged soon after the above said incident but the offence was continued. Later, a complaint came to be lodged against the petitioner. After thorough investigation, the police found the allegations are true; Hence, charge-sheet has been filed. Of course there is delay in lodging the complaint and there is no medical evidence available as the mother of the victim girl refused to give consent for the examination of the victim girl.
4. During the course of investigation, the police have recorded the statement of the victim girl who was aged about 11 years. She re-iterated what exactly happened with her by the petitioner. It is naturally difficult for any children to make allegations against the father. They are afraid of father and mother and if they disclose anything against them, what they will think about the victim girl etc. In this context, delay will not come in the way of considering the statement of the victim girl. The POCSO Act came into existence in the year 2012 in order to protect the children provisions have been made under Section 29 of the Act that if once charge-sheet is filed and the allegations are available, further the victim girl statement is recorded, under this factum the Court has to infer the said act has happened by drawing initial presumption. That has to be rebutted only during the course of full dressed trial.
5. Therefore, looking to the age of the girl and family circumstances, the difference between the husband and wife, in my opinion, it is not fit case where Court can exercise the discretion to enlarge the petitioner on bail.
I do not find any strong reasons to enlarge the petitioner on bail. Hence, petition is devoid of merits and deserves to be dismissed. Accordingly, it is dismissed.
Sd/- JUDGE SB