IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.7080/2018 BETWEEN:
Padam Singh Seni, Aged 28 years, Son of Batturam Seni, 250 Chakki ke picche, Karsauli Tehsil, Karsauli District, Rajasthan-322442.
Presently residing at:
C/o. Geetha Hedge, Door No.4-500, Rahul Nagar, 80 Badagebettu Village, Udupi Taluk-574104. ...Petitioner (By Sri. Harish Ganapathy, Advocate) AND:
The State of Karnataka, Represented by Women Police Station, Udupi District-574 104. ...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.12/2016 registered by Women Police Station, Udupi for the offence punishable under Sections 366(A), 376(D), 201 and 506 read with 34 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 The present petition has been filed by the petitioner-accused No.2 under Section 439 of Cr.P.C. seeking his release on bail in Crime No.12/2016 of Women Police Station, Udupi for the offences punishable under Sections 366(A), 376(D), 201, 506 read with Section 34 of IPC and also under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for brevity).
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State.
3. The gist of the complaint is that on 08.01.2016 at about 00:15 hours, accused Nos. 1 and 2 went to the house of the victim and knocked the door, the victim girl woke up under an impression that her father returned back to home. When she opened the door, accused Nos. 1 and 2 were standing near the door and immediately by holding her hand pulled her out and thereafter, they took her in a Maruthi Omini Car and at that time, she became unconscious and later when she regained her consciousness in the morning she started having pain in her body and her private parts. The said fact was disclosed to her father and a case has been registered in this behalf.
4. It is the submission of the learned counsel for the petitioner that the statement of the victim under Section 164 of Cr.P.C and the complaint disclose that there is inconsistency in the statement of the victim. He further submitted that it is accused No.1, who has committed sexual assault on the victim and there are no circumstances alleged against accused No.2-petitioner. He further submitted that as per the contents of the complaint, she became unconscious but in her statement under Section 164 of Cr.P.C, she has stated that when she was in the room, her hands were tied on the back side and there are omissions in this behalf in the statement given by the victim girl. He further submitted by referring to the medical records and history given by the victim to the Medical Officer states that it is accused No.1 who called her outside through the window, took her to his room in a Maruthi Omini car and there she was sexually assaulted and subsequently, it has been stated that prior to 15 days, she had sex with accused No.2, it is not on the day when the alleged incident has taken place. He further submitted that even the medical records also indicates that there was no bleeding over her private parts and even no symptoms have been stated by the Doctor for having sexual assault on the victim girl. He further submitted that the materials which have been produced disclose that the petitioner-accused No.2 is not involved in the said case. Learned counsel further submitted that the petitioner-accused No.2 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 No.2 on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that accused Nos. 1 and 2 are close friends of the father of the victim. The accused persons took the victim girl and have committed an aggravated sexual assault on her. He further submitted that the complaint, statement of the victim under Section 164 of Cr.P.C, history given by the victim to the Medical Officer corroborates with each other. He further submitted that even the history given by the victim to the Doctor and the opinion of the Doctor discloses that there is a possibility of sexual assault committed on the victim. He further submitted that FSL Report clearly indicates that the clothes of the victim had stains with blood and even seminal stains were also detected on the clothes, that itself clearly goes to show that the petitioner-accused No.2 along with accused No.1 has sexually assaulted the victim girl. He further submitted that the materials which have been produced clearly states that the petitioner-accused No.2 is involved in a heinous offence and as such, he is not entitled to be released on bail.
6. I have carefully and cautiously gone through the contents of the complaint and other materials, which have been produced along with the petition and the submissions made by both the counsels.
7. On close reading of the records reveal that the victim is a minor girl and in the complaint as well as in her statement given under Section 164 of Cr.P.C recorded before the Magistrate, she has clearly stated that accused Nos.1 and 2 went to the victim’s house, knocked the door, when the victim girl opened the door, out of them, one pulled her out and the other tried to assault and thereafter, she was taken in a Maruthi Omini car and at that time, she lost her consciousness, later when she regained her conscious, she was in the bed room, accused No.1 took her in a car and left her in the road. The victim girl later noticed pain in her body as well as in her private parts and she also stated that blood was oozing from her private parts. During the course of arguments, learned counsel for the petitioner submitted that the Doctor in his opinion has stated that no seminal stains were detected in the vagina or the underwear and other articles, but the FSL Report clearly indicates that in Articles E, G, H, seminal stains were noticed. Even the statement of the victim also clearly goes to show that accused No.2 was also present along with accused No.1 when she was eloped from her house. There may be minor contradictions and omissions in the records produced. Merely because of some contradictions, at this juncture, mini trial cannot be held and this Court cannot come to the conclusion that the petitioner-accused No.2 has not committed any offence alleged against him. By going through the materials which have been produced clearly goes to show that there is a prima facie material as against the petitioner-accused No.2 for having been involved in the alleged offence.
Under the said facts and circumstances of the case, I feel that it is not a fit case to release the petitioner-accused No.2 on bail. Hence, the petition stands dismissed.
Sd/- JUDGE RB