IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.1355/2019 BETWEEN:
SRI. BALAKRISHNA S/O. BHATRALIYAPPA AGED ABOUT 24 YEARS R/AT NO.1048 2ND CROSS, KUNDALA HALLI COLONY BANGALORE-560 037. ... PETITIONER (BY SRI. CUCKOO DELHI, ADVOCATE) AND:
THE STATE OF KARNATAKA BY HAL POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE-560 001. ... RESPONDENT (BY SRI. NASRULLA KHAN, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.452/2018 OF HAL POLICE STATION, BANGALORE FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 366, 376, 120B, 342, 506 READ WITH SECTIONS 5(L), 6, 17 OF POCSO ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This petition has been filed by the petitioner/accused under Section 439 of Cr.P.C. seeking release him on bail in Crime No.452/2018 (Spl.C.C.No.18/2019) of HAL Police Station, Bengaluru for the offences punishable under Sections 366, 376, 120-b, 342, 506 read with 34 of IPC and Sections 5(L), 6 and 17 of the Protection of Children from Sexual Offences Act, 2012. (‘POCSO’, for short).
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.
3. Gist of the complaint is that on 21.10.2018, the complainant was residing in Narayanapur Village, Yadagiri District and was working as a maid servant. Her father is a mason and her mother is doing house keeping job. Thereafter, the complainant parents came to Bangalore in search of job. Accused No.1-Mohammed Rafiq Basha used to reside by the side of the house of the complainant and he came in contact with the complainant. At that time, accused No.2-Balakrishna used to come to the house of accused No.1, on that pretext, accused No.2 came in contact with the complainant and expressed his love towards her but the complainant rejected his offer as accused No.2 already married to accused No.3. Accused No.2 forcibly made the complainant to accept his offer. When the accused No.2 was in touch with complainant for a period of 4 months, accused No.1 came to her house and offered his love and promised her to marry but she ignored his offer and told him that she is already in love with accused No.2. Thereafter, at about three and half months back, accused No.1 had offered her pineapple juice. After drinking juice, complainant became unconscious. After regaining conscious, she was in the house of the accused No.1 laying on his bed and she came to know that she has been sexually assaulted by accused No.1. When she asked accused No.1 about the heinous act, he threatened her, hence, complaint was not registered at that time. It is further alleged that accused No.1 took her to the house of accused No.3 where she lived for a period of fifteen days and saying that accused No.1 will marry her within four months. Thereafter, accused No.2 took her to Andhra Pradesh and got married at Kuppam forcibly. Accused No.2 took a rented house and both were living as a husband and wife and accused No.2 had forcible sex with the complainant for a period of two months. Later accused No.3 and her relatives came to the spot and brought them back to Bangalore and they have been taken to HAL police station and complaint has been registered.
4. It is the submission of the learned counsel for petitioner that the said complaint has been given under duress, for the reason the circumstances and situation made her to give complaint against the petitioner. He further submits that she has given different statements in the statement of victim recorded under Section 164 of Cr.P.C and the complaint. The entire allegations made against the petitioner for sexual assault are all false and frivolous as in the complaint she has told that she and accused No.2 were staying for a period of two months as a husband and wife. As such, there is no question of forcible sex. The complainant being a 16 years old girl could have resisted when she was taken to Andra Pradesh if she really not willing to go with him. But she never resisted anywhere about the act of the petitioner. It is further submitted that the alleged offences are not punishable either with death or imprisonment for life and submits that he is ready to abide by any conditions that may be imposed on him by this Court and ready to offer sureties. On these grounds, learned counsel for the petitioner prayed 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 though the petitioner being a married man, he took the complainant to Andrapradesh on the pretext of marriage, he had sex with the complainant. As such, he is not entitled to be released on bail. He further submitted by referring Section 30 of POCSO Act that there is a presumption with regard to culpable mental state of the accused. He further submitted that accused No.2 has committed sexual assault on the minor victim girl as such, petitioner committed heinous offence which is grave in nature. If accused is released on bail, he may tamper with the prosecution witnesses and he may abscond and may not available for trial. Hence, prays to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and other materials on record which has been produced in this behalf.
7. On close reading of the contents of the complaint, other materials, and the statement of the victim recorded under Section 164 of Cr.P.C. before the learned Magistrate which disclose that the victim has deposed that she had a contact with accused No.1 and thereafter she started living with accused No.2 when accused No.2 took her to Andhra Pradesh and they got married and took a house for rent and started living as a husband and wife for a period of two months and When they stayed in Andhra Pradesh, accused No.2 had sex with complainant on several times. If it is perused, it clearly goes to show that it is nothing but a consensual sexual act as nowhere resistance has been made by the complainant. It is contended by the learned High Court Government Pleader that the victim is a minor girl. Though the complainant being minor, aged about 16 years old, she was knowing the consequences when accused No.1 had sexual assault on her but she has not given any complaint against accused No.1. Thereafter, she went to Andrapradesh along with accused No.2 and there, they took a rented house and living as a husband and wife for a period of two months despite knowing that accused No.2 is a married man.
8. Keeping in view the said facts and circumstances, I feel that by imposing some stringent conditions, if the petitioner/accused No.2 is enlarged on bail, it is going to meet the ends of justice. In that light, petition is allowed.
9. Petitioner/accused No.2 is enlarged on bail in Crl.Mis. Nos. 563/2019 and 730/2019 (Spl.C.C.No.18/2019) on the file of LIV Addl. City Civil and Sessions Judge, Bengaluru, for the offences punishable under Sections 366, 376, 120-b, 342, 506 read with 34 of IPC and Sections 5(L), 6 and 17 of the POCSO Act subject to the following conditions:
1. Petitioner/accused No.2 shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the likesum to the satisfaction of the trial Court.
2. He shall attend the Court regularly.
3. He shall not tamper with the prosecution evidence directly or indirectly 4. He shall not leave the jurisdiction of the Court without prior permission.
5. He shall not indulge in similar type of activities till the completion of the trial.
6. He shall mark his attendance once in 15 days between 10.00 a.m., to 5.00 p.m., till trial is concluded.
7. If he violates any one of the conditions mentioned above, his bail will be cancelled.
JS/-
Sd/- JUDGE