IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.5823/2017 BETWEEN Melvin Herald, W/o. Wilson, Aged about 21 years, R/at No.60, 2nd Floor, 4th Cross, BDA Layout, Lingarajapura, Bengaluru-560 084, (As stated in the Remand Application) (By Sri G.R. Anil Ghosh, Adv.) AND State of Karnataka by Banaswadi Police Station, Bengaluru, Rep. by State Public Prosecutor, High Court of Karnataka, Bengaluru-560 001 ...PETITIONER ...RESPONDENT (By Sri Chetan Desai, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C., praying to enlarge the petitioner on bail in Spl.C.C. No.111/2017 pending on the file of the LIII Additional City Civil and Sessions Judge, Bengaluru, for the offences punishable under Section 376 of I.P.C. and Section 5(L) read with Section 6 of Protection of Children from Sexual Offence Act, 2012.
This petition coming on for Orders, this day, the Court made the following:
ORDER This is the petition filed by petitioner-accused under Section 439 of Cr.P.C., seeking his release on bail of the alleged offences punishable under Section 376 of I.P.C and also Section 5(L) read with Section 6 of Protection of Children from Sexual Offences Act, 2012, registered in respondent-Police Station Crime No.574/2016.
2. Brief facts of the prosecution case as per the complaint averments are that the victim girl herself lodged a complaint stating that she was studying in I – PUC (Arts) in Bishop Cotton Women’s Christian College, petitioner was her senior in Divya Shanti School, but she had no contact with him in her school days though he passed his 10th standard in the year 2011-2012, one Malo Williams, aunt of the petitioner used to give food to our boarding home once or twice in a year as a memorial service to her mother’s death day and petitioner used to come along with her, this is how, they got to known to each other and they became friends. On 03.11.2016 when she was on her way to college she was waiting for a bus in Lingarajpura Bus Stop, at around 10.00 a.m. in the morning, Melvin came to the bus stop took her to his house in Lingarajpur, he gave fried rice to her to eat, later he took her to bed room against her wish when no other members were there in their house. She tried to walk out, but he caught hold her hands and in spite of her refusal he removed her clothes and as well as his clothes also and had forcible sexual intercourse with her. He did this twice on the same day. Again on 08.11.2016 he took her to his house and had the sexual intercourse with her. On 9th November 2017 she informed the same to their trust Director Colleen Samuel, then she inquired her and took her to a Doctor for examination. On the basis of which a case came to be registered for the alleged offence against the petitioner.
3. Heard the arguments of the learned counsel appearing for the petitioner and also the learned HCGP for the respondent-State.
4. Learned counsel appearing for the petitioner made the submission that looking to the allegations made in the complaint so also other charge sheet materials collected during investigation, there is no prima facie case made by the prosecution as against the petitioner about his involvement in committing the alleged offence. Learned counsel drawn the attention of this Court to the statement of the victim girl said to have been given before the Magistrate Court under Section 164 of Cr.P.C., and submitted that there is no consistency in the averments made in the complaint so also the 164 statement of the victim girl. He also submitted that looking to the entire materials, there is no evidence to show that really there was a sexual intercourse by the petitioner as against the wish of the victim girl. Further, the learned counsel referring the F.S.L. Report made the submission that even the F.S.L. report is not supporting the case of the prosecution. He also submitted that since from one year the petitioner is in judicial custody and the investigation is completed charge sheet is also filed. By imposing reasonable conditions he may be enlarged on bail.
5. Per contra, learned HCGP made the submission that looking to the complaint averments, the victim girl was aged about 16 years as on the date of alleged incident and it is clearly stated that when she was waiting for the bus at Lingarajpura, petitioner came their and took her to his house, then he caught hold her hands and when she refused he removed her clothes forcefully as well as his clothes also, then committed forcible sexual intercourse on her. Learned HCGP further made the submission that there may be minor discrepancies in the complaint averments and 164 statement of the victim girl recorded before the Magistrate Court, but so far as main incident of forcible sexual intercourse is concerned, there are allegation in both the statements. He also made the submission that even medical records support the prosecution case. Hence, he submitted that petitioner is not entitled to be granted with bail.
6. I have perused the grounds urged in the bail petition, F.I.R., Complaint, statement of victim girl recorded under Section 164 of Cr.P.C., also F.S.L. report, medical records and other materials collected during investigation.
7. Looking to the of complaint averments and the 164 of statement, the age of the victim girl is 16 years as on the date of incident and looking to the allegations made in the complaint the victim has stated that in the house of the petitioner forcefully he has committed the sexual intercourse on her. Even in the statement under Section 164 of Cr.P.C. also she has stated about the same. It is no doubt true that in 164 statement of the victim girl there is mention that others lodged the complaint stating that she went to the said house along with other boys. Apart from that as it is the submission by the learned HCGP regarding the allegation of the forcible sexual intercourse is concerned, there consistency in both. I have also perused the medical records issued by the Doctor, who examined the victim girl, regarding local general examination wherein it is mentioned that the hymen is not intact. So also looking to the Sl.No.2 the Doctor has stated that local general examination evidence of presence of recent sexual intercourse is present. Looking to these materials placed on record, coupled with the statement of victim girl, the prosecution placed prima facie material about the involvement of the petitioner in committing the alleged offence. The offences are also under the provisions of POCSO Act. Considering these materials placed on record, I am of the opinion that it is not a fit case to exercise discretion in favour of the petitioner. Accordingly, petition is hereby rejected.
However, as it is submitted by the learned counsel for the petitioner that the petitioner is in custody since more than one year from the date of the arrest, the concerned Sessions Court is hereby directed to take up the matter on priority basis and to dispose of the same, as early as possible.
Sd/- JUDGE SBS*