IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.7825/2018 BETWEEN SANTHOSH KUMAR C S/O ARMUGAM, AGED ABOUT 23 YEARS, R/AT GOVERNMENT SCHOOL, ADJACENT ROAD, 2ND CROSS, OPP TO MANI’S HOUSE, CHUNCHAGATTA, KONANAKUNTE, BENGALURU-560062. ... PETITIONER (BY SRI S.MUNIBYRE GOWDA, ADV.) AND THE STATE OF KARNATAKA BY BANASHANKARI POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560001. ... RESPONDENT (BY SRI M.DIVAKAR MADDUR, HCGP.) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.185/2018 REGISTERED BY BANASHANKARI POLICE STATION, BENGALURU AND IN SPL.C.C.NO.592/2018 PENDING ON THE FILE OF LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU FOR THE OFFENCE P/U/S 363,366 AND 376 OF IPC AND SECTION 4 AND 6 OF POCSO ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The present petition has been filed by the petitioner/accused under Section 439 of Cr.P.C., seeking his release on bail in Crime No.185/2018 of Banashankari Police Station (Spl.C.C.No.592/2018) for the offences punishable under Sections 363, 366, 376 of IPC and Sections 4 and 6 of POCSO Act, 2012.
2. I have heard learned counsel for the petitioner and learned High Court Government Pleader for respondent-State.
3. The gist of the complaint is that the victim was working in a cloth shop and on 23.04.2018, the petitioner/accused came to the house and at that time, the victim introduced him to her parents and he was acquainted with her family. The accused/petitioner is working as a driver and asked the victim to meet him and thereafter, he took her and till 8.30 p.m. she did not return back to the house. As such, a missing compliant was filed and subsequently, he was traced and the statement of the victim was recorded, in which she disclosed that on 25.06.2018, the accused persuaded her under the guise of marring her and loving her, he took her to Chittor and there, they were staying together in the house. In spite of her refusal, under the guise of marriage, he sexually assaulted her and committed forcible sexual intercourse against her will. On the basis of the said statement and after investigation is completed, charge sheet has been filed.
4. It is the submission of learned counsel for the petitioner that the accused/petitioner is innocent and he has not committed any offence and no physical injuries has been found. Even the medical report goes to show that no such injuries were found. He further by relying upon the decision of this Court in the case of Kiran.H.S. vs. The State of Karnataka passed in Crl.P.No.6247/2018 submits that the victim is aged about 17 years and if at all no injuries are found, then it is a consensual sexual act. He further submits that the accused/petitioner is ready to abide by any condition to be imposed on him by this Court and ready to offer surety. On these grounds, he prays 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 under the false promise of marriage took the victim girl to the Chittor and by keeping her in a house, sexually assaulted. He further submitted that medical evidence also corroborat’s with 164 statement of the victim recorded before the Magistrate. Even the statement of the parents also clearly disclose the fact that the victim has stated that she has been sexually assaulted by the accused. There is ample material to connect the accused to the alleged crime. On these grounds, he prays for dismissal of the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.
7. On close reading of the contents of the complaint and other materials including the statement of the victim would disclose that the victim is aged about 17 years and under the guise of marring her, the accused took her and thereafter, she has been sexually assaulted in spite of her resistance. Subsequently, even the conduct of the accused if it is seen that either he has married her nor he has made any attempt in this behalf. In such circumstances, the act of the accused itself clearly goes to show that he is having mala-fide intention and under the false promise of marriage, he had sexual intercourse with the victim. Under the said circumstances, the said act of the accused cannot be considered as consensual sex and the accused/petitioner is not entitled to be released on bail. Even, the hymen is not intact and 164 statement of the victim also corroborate with the material evidence. As held by the Hon’ble Apex Court in the case of ANURAG SONI VS. STATE OF CHHATTISGARHIN in Crl.A.No.629/2019 even on the false promise, sexual assault has been committed, then the said act amounts to rape and cannot be considered as consensual sexual act.
8. Under the said facts and circumstances, petitioner has not made out any good ground to release him on bail.
Hence, the petition stands dismissed. The trial Court is directed to expedite the trial.
Sd/- JUDGE VM CT:HR