IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER 2017 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL R.B. CRIMINAL PETITION NO.7087 OF 2017 BETWEEN:
MADHU V.
S/O VENKATESH AGED ABOUT 23 YEARS R/AT NO.61, 1ST MAIN ROAD NEAR SHANIMAHATHMA TEMPLE VRUSHABHAVATHI NAGAR KAMAKSHIPALYA BENGALURU – 560 079.
... PETITIONER (BY SRI VEERANNA G. TIGADI, FOR SRI RAMESHA H.N., ADV.) AND:
THE STATE OF KARNATAKA BY KAMAKSHIPALYA P.S.
REP. BY SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001.
... RESPONDENT (BY SRI CHETAN DESAI, HCGP) THIS CRIMINAL PETITION IS FILED U/S.439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.251/2017 (SPL.C.C.NO.399/2017) OF KAMAKSHIPALYA P.S., BANGALORE FOR THE OFFENCES P/U/Ss.420, 376(2)(n) OF IPC AND SECTIONS 5(L), 6, 12 OF POCSO ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This petition is filed by the petitioner – accused under Section 439 of Cr.P.C. seeking to release him on bail of the alleged offences under Sections 420 and 376(2)(n) of IPC and also under Sections 5(L), 6 and 12 of the POCSO Act registered in respondent – Police Station Crime No.251/2017.
2. Brief facts of the prosecution case is that the victim girl is the complainant, wherein she has stated her age as 17 years and she has mentioned that she was studying in 10th standard at VLS High School. During that period she got introduced to the accused. The complainant used to call the accused to his mobile phone. Accused told the complainant that he has completed B.Com doing finance business. Further he has assured the complainant that he will marry her. On one day, in the first week of December 2016, at about 9.00 a.m. when the complainant was at Vrushabhavathinagar, she met the accused and he told her to call him over the phone. As per the instructions of the accused, the complainant called the accused over phone. That time, he told the complainant that he wanted to talk with her and told to come near his house. The complainant at 10.30 a.m. went to the house of the accused. He was alone in the house. They were talking in the house and after sometime, the accused told the complainant that he will marry her and asked to co-operate for the sexual act, but the complainant did not agree for the same. Further allegation is that the accused told the complainant that he is going to marry her and made her to believe the same as true and had sexual intercourse with her. Thereafter also he had sexual contacts with her for three or four times. On the basis of the complaint, case came to be registered for the said offences.
3. Heard the arguments of the learned counsel appearing for the petitioner and also the learned HCGP for the respondent – State.
4. Counsel for the petitioner – accused made the submission that even looking to the prosecution material, there is no prima-facie case to attract the alleged offences under Section 376 of IPC. Counsel also referred to statement of the victim girl recorded under Section 164 of Cr.P.C. and made the submission that even looking to the statement also there is no case made out as against the petitioner. Learned counsel submitted that even till today, the petitioner is ready to marry the victim girl. He relied upon the decision of the Bombay High Court rendered in the case of Sunil Mahadev Patil vs. The State of Maharashtra in Bail Application No.1036/2015. Hence, he made the submission by imposing reasonable conditions, the petitioner may be enlarged on bail.
5. Per contra, learned HCGP made the submission that looking to the age of the victim girl she was a minor. Therefore, she has stated in her statement before the Police as well as before the Court that the petitioner had the sexual intercourse with her even though she has not agreed for the same. Hence, he made the submission that there is a prima-facie case as against the present petitioner and hence, he is not entitled to be granted with bail.
6. I have perused the grounds urged in the bail petition, FIR, complaint and other materials produced in the case.
7. Looking to the complaint, the victim girl mentioned her age as 17 years. It is mentioned that the alleged act of sexual intercourse was done in the month of December 2016. Complaint is filed on 10.06.2017. There is a delay of more than six or seven months in lodging the complaint. Apart from that looking to the complaint averments, it prima-facie goes to show that there was a love affair between the two. It is not only one act of sexual intercourse, but she herself has mentioned even subsequently also three or four times they had sex. Therefore looking into these materials placed on record, prima-facie even if it is assumed by the Court that there is sexual intercourse between the two, this goes to show that it is a consensual sex between the two. Hence, petitioner contended that he is ready to abide by any reasonable conditions to be imposed by the Court. The alleged offences is also not exclusively punishable with death or imprisonment for life.
Accordingly, petition is allowed. Petitioner - accused is ordered to be released on bail of the offences punishable under Sections 420 and 376(2)(n) of IPC and also under Sections 5(L), 6 and 12 of the POCSO Act registered in respondent – Police Station Crime No.251/2017, subject to the following conditions:
i) Petitioner has to execute a personal bond for Rs.1,00,000/- (Rupees One lakh only) and has to furnish one surety for the likesum to the satisfaction of the concerned Court.
ii) Petitioner shall not tamper with any of the prosecution witnesses, directly or indirectly.
iii) Petitioner has to appear before the concerned Court regularly.
Sd/- JUDGE ca