IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER 2017 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.7072 OF 2017 BETWEEN:
SHIVA @ SHIVAKUMAR S/O. GANESH MESTHRI AGED ABOUT 23 YEARS R/O. NEAR MALLURAMMANA KATTE VAGAR ROAD, ALDUR HOBLI CHIKKAMAGALUR TALUK & DISTRICT – 577 101.
... PETITIONER (BY SRI GIRISH B. BALADARE, ADV.) AND:
STATE BY ALDUR POLICE STATION CHIKKAMAGALUR DISTRICT REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE – 560 001.
(BY SRI K.NAGESHWARAPPA, H.C.G.P.) ... RESPONDENT THIS CRIMINAL PETITION IS FILED U/S.439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.71/2017 OF ALUR POLICE STATION, CHIKKAMAGALURU, FOR THE OFFENCE P/U/S.376(2((i)(n), 342 AND 506 of IPC AND SECTION 4 OF POCSO ACT, 2012.
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 his release on bail of the offences punishable under Sections 376(2)(i)(n), 342 and 506 and also under Sections 5(L), 6 of POCSO Act, registered in respondent – police station Crime No.71/2017.
2. Brief facts of the prosecution case is that victim girl herself is the complainant. She filed a complaint alleging that she and the petitioner were known to each other and fell in love. The petitioner sed to take the victim girl to Cinema, Falls, Hillock and Temple by promising her to marry. On 25.10.2016 at about 7 p.m. the petitioner took her to his house and committed forcible rape in spite of her resistance and detained her in his house for a period of six days and there committed repeated sexual assault against her, due to which, she became pregnant. When the said fact was disclosed to the petitioner by her, the petitioner got aborted her pregnancy by giving tablets and thereafter, he declined to marry the complainant. The victim girl made an attempt to commit suicide by consuming poison. This fact was known to the petitioner and he was absconded from the village. On the basis of the complaint, case came to be registered for the alleged offences as against the petitioner herein.
3. Heard the arguments of the learned counsel appearing for the petitioner/accused and also the learned High Court Government Pleader appearing for the respondent-State.
4. I have perused the grounds urged in the bail petition, FIR, complaint and other materials placed on record so also the order of the learned Sessions Judge rejecting the bail application of the present petitioner.
5. Looking to the complaint averments, the complainant has mentioned her aged as 17 years. Learned Counsel for the petitioner has also produced the medical records, wherein her age is mentioned as 18 years. The complaint averment goes to show that the victim girl as well as the petitioner were in love and moved together to different places. It is the allegation that the petitioner on the false promise that he will marry the victim girl took her to his house, thereby he committed sexual assault in spite of her resistance and thereafter, she became pregnant. Considering all these aspects of the matter, prima facie it goes to show that even if there is sexual intercourse between the two, the said act is consensual in nature. The petitioner has contended in the petition that he is innocent and not committed the alleged offences and he has been falsely implicated in the case. Now the investigation is completed and charge sheet has been filed. The alleged offence under Section 376 of Cr.P.C. is not exclusively publishable with death or imprisonment for life. Hence, the petition is allowed. Petitioner/accused is ordered to be released on bail of the offence punishable under Sections 376(2)(i)(n), 342 and 506 and also under Sections 5(L), 6 of POCSO Act, registered in respondent – police station Crime No.71/2017, subject to the following conditions:
i. Petitioner has to execute a personal bond for Rs.1,00,000/- 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 SA