IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF OCTOBER 2017 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION No.6011/2017 BETWEEN:
Santosh S/o Venkateshappa Aged about 29 years R/at Anuru village Sidlaghatta taluk Chickballapur District-562 101. .. PETITIONER (By Sri A N Radha Krishna, Adv.) AND:
The State of Karnataka by Shidlaghatta Rural Police Chikkaballapura District Represented by the State Public Prosecutor High Court of Karnataka Bengaluru-560 001. .. RESPONDENT (By Sri Chetan Desai, HCGP) This criminal petition is filed under Section 439 of the Cr.P.C. praying to enlarge the petitioner on bail in Cr. No.53/2017 of Shidlagatta Rural P.S., Chickballapura District for the offences punishable under Sections 504, 376D read with Section 34 of IPC and Section 4, 6, 8 of POCSO Act.
This petition coming on for Orders this day, the Court made the following :
ORDER This petition is filed by the petitioner-accused No.1 under Section 439 of Cr.P.C. seeking his release on bail of the offences punishable under Sections 504, 376D read with Section 34 of IPC and Sections 4, 6, 8 of POCSO Act registered in respondent Police Station Crime No.53/2017.
2. Brief facts of the prosecution case are that on 10.03.2017 at 09.30 a.m., the respondent police received a phone call from Chikkaballapura Government Hospital and accordingly, the police went to the hospital and recorded the complainant Niveditha’s statement before the Doctor. It is alleged in the statement that the victim is studying in first year B.Com., at Chikkaballapura Pre- University College. Her mother died when she was young and she is residing with her father. Earlier when she was in her senior uncle Thimmarayppa’s House, there was a call from her village person Santhosh (petitioner) phone 9663422243 to her Senior Uncle Thimmarayppa’s Phone No.87110009631. At that time, since her senior uncle Thimmarayappa was not in the house, she received and talked to him. Again, he telephoned and asked her to go near temple under construction, for which, when she told that she will not come, he threatened and asked her to come. When the victim went there, he tried to remove/untie the chudidar and in spite of her request not to remove, he removed her clothes and sexually abused her and thereafter, he left to Bengaluru. It is further alleged that again one Naveen of her village has become close, used to talk with her. He took her near the temple and by removing chudidar and by force, sexually abused her. Again on 13.6.2016, the said Naveen forcibly made her to come and sexually abused. After her father came to know the same, advised her. It is alleged that on 07.07.2016, her father passed away. Her aunt got her admitted to BCM Hostel. It is stated that after Shivarathri festival, after noticing her womb, her aunt took her to the Doctor at Chikkaballapura on 25.02.2017 and Doctors told her, she is pregnant of 9 months and advised her to go to Swadhara Centre. Accordingly, her aunt got her admitted. On 03.03.2017, she gave birth to a male child. After discharge, she came to Chikkaballapura Hospital. On the basis of the said complaint, the case was registered by the respondent police for the said offences against the petitioner herein and one Naveen, who has been arrayed as accused No.2.
3. I have heard the learned Counsel appearing for the petitioner-accused and the learned High Court Government Pleader appearing for the respondent-State.
4. Learned Counsel appearing for the petitioner, during the course of the arguments, submitted that for the purpose of appreciation of case, if the date of complaint is taken into consideration, it is filed after delay of two years. He submitted that the call details are not collected by the investigating officer. Even looking to the complaint averments, she has stated that one person called her over phone with particular number. It is submitted by the learned Counsel that in the complaint itself, the phone number is mentioned that subsequently, similar acts of sexual assault was made on her by one Naveen, who is accused No.2. The learned Counsel draws the attention of the court to the materials and submitted that DNA test was conducted and the report of the laboratory goes to show that the petitioner is not involved in commission of the alleged offence. Hence, he submitted to allow the petition and admit the petitioner to the regular bail.
5. Per contra, learned High Court Government Pleader appearing for the respondent-State, opposed the petition and submitted that so far as the complaint averments and the other materials produced by the prosecution, there are allegations against the petitioner that he had called the victim girl to a particular place and had sexual intercourse with her. The learned HCGP submitted that though the DNA report, no doubt, shows the name of accused No.2 as biological father of the said child, but in view of the allegations made in the complaint and other material collected during investigation, the petitioner is not entitled to the regular bail.
6. I have perused the averments made in the bail petition, FIR, complaint and the other materials on record.
7. Investigation of the case is completed and the charge sheet has been filed. As submitted by learned HCGP, in the DNA report, the name of accused NO.2 Naveen is shown as the biological father of the said child. So far as the petitioner is concerned, he has denied the allegation made in the complaint and contended that he has been falsely implicated in the case and that, he is innocent. As it is rightly submitted that as per the complaint averments, one person was called the victim girl over the phone to a particular place and phone number is also mentioned. But the call details are not collected. The contention of the prosecution regarding the allegations of sexual assault on the victim girl by the petitioner is concerned, it is a matter of trial. From the date of arrest, he is in custody. In view of the finding given by the DNA test laboratory and denial of the allegations made by the petitioner and as submitted, there is delay of two years in lodging the complaint from the date of incident, so far as the petitioner is concerned, it is a fit case to exercise discretion in favour of the petitioner.
8. Hence, the petition is allowed. The petitioner- accused No.1 is ordered to be released on bail of the offences punishable under Sections 504, 376(d) read with Section 34 of IPC and also under Sections 4, 6 and 8 of POCSO Act registered in respondent police station Crime No.53/2017, subject to following conditions:-
I. Petitioner shall execute bond for a sum of Rs.1,00,000/- and shall offer one solvent surety for the like sum to the satisfaction of concerned Court.
II. The petitioner shall not intimidate or tamper with prosecution witnesses, directly or indirectly.
III. The petitioner shall regularly attend the Court.
Cs/-
Sd/- JUDGE