IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.1051 OF 2019 BETWEEN:
Sri. Dhanaraja.A @ Ajjanara Dhanaraj, S/o Maheshappa, Aged about 24 years, R/o Kanivehalli Village, Harapanahalli Hobli, Davangere District-583 131, UTP No.1154/2018 (By Sri. Satish M.Doddamani, Advocate) AND:
The State of Karnataka by Harapanahalli Police Station Davangere-583 131.
Represented by State Public Prosecutor, High Court Buildings, Bengaluru-560 001.
...Petitioner Bengaluru City. ... Respondent (By Smt.Namitha Mahesh B.G, HCGP) This Criminal Petition is filed under Section 439 of Criminal Procedure Code praying to enlarge the petitioner on bail in Crime No.272/2018 (S.C.No.219/2018) of Harapanahalli police station, Davanagere District for the offence punishable under Section 366, 376 of IPC and Section 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 is filed by accused No.1 under Section 439 of Cr.P.C, seeking to release him on bail in Crime No. 272/2018 (S.C.No.219/2018) of Harappanahalli Police Station, Davanagere District, pending on the file of II Additional District and Sessions Judge, Davangere, for the offences punishable under Section 366, 376 of IPC and Section 6 of POCSO Act.
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, victim is the minor youngest daughter of the complainant. On 5.10.2018 at about 1.00 p.m, complainant had gone for coolie work and returned home at about 6.30 pm and noticed that the victim is not in the house. Then, complainant made enquiries with her relatives and friends and she came to know that the accused was in love with the victim and he might have eloped her daughter, on suspicion she lodged the complaint.
4. During the course of investigation, the accused No.1 was apprehended and the victim was also traced and thereafter the statement was recorded. The statement of the victim discloses that she has been taken by the accused and she disclosed that she has studied up to 9th standard and the accused-petitioner is a friend of her brother and he use to come to her house and she was acquainted with him and they were closely moving and he use to tell, he loves her and they used to meet in the village and use to talk. Subsequently, the said fact of loving was noticed by her parents and they advised and prevented them not to meet, but however, they use to meet confidentially and decided that they should go from the house and get married. Accordingly, on 05.11.2018, at about 8 pm, the accused-petitioner called her to come to Harapanahalli Bus stand. The accused-petitioner took the victim in his friends car bearing registration No.KA-35-C-0805 and went to Harapanahalli KSRTC bus stand and from there accused-petitioner took the victim to Harihara and from there he took her to Mangaluru in KSRTC bus and there accused-petitioner has taken the victim to the house of his friend and stayed there from 06.10.2018, they informed his friend that they were loving each other and they stayed there and at that time they use to have sexual act and thereafter they came to know that a case has been registered and they came back and she has given a statement and on the basis of the said complaint after investigation charge sheet has been filed.
5. It is the submission of the learned counsel for the petitioner that the missing complaint was filed only on suspicion. He further submitted that material evidence collected by the investigating agency is of vital import. Several samples were sent to FSL, the FSL has conducted tests, conducting of test had given negative findings indicating the absence of any sort of penetrative sexual act that could have been committed on the alleged victim. He further submitted that accused-petitioner and the victim loved each other and there is no evidence to show that she resided with the accused-petitioner and took her along with him to various places. There are no witnesses to the said fact. The statement of the victim recorded on 20.10.2018 clearly goes to show that victim voluntarily went along with petitioner-accused and that there is no allegation of sexual assault committed by the accused-petitioner. Charge sheet has already been filed and the accused- petitioner is not required for the purpose of investigation or interrogation. He is ready to abide by the conditions imposed by the Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner-accused on bail.
6. Per contra, learned High Court Government Pleader vehemently argued and submitted that there is ample material to connect the accused with the alleged offence. She further submitted that the medical records clearly goes to show that hymen is not intact and even the history given by the victim clearly goes to show that it is the accused who took her and sexually assaulted. The information which has been given by the doctor clearly goes to show that the accused-petitioner has sexually assaulted the victim minor girl. She further submitted that if the petitioner-accused is ordered to be released on bail, he may abscond and he may not be available for trial. On these grounds, she prays to dismiss the petition.
7. I have carefully and cautiously gone through the submission made by the learned counsel appearing for parties and perused the records.
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8. Though in the statement given by the victim she has stated that the accused-petitioner has sexually assaulted but the statement has been recorded under 164 of CR.P.C before Civil Judge and JMFC, Harihara on 20.10.2018, therein she has deposed that the parents were insisting for her marriage and as she was not interested to marry, on 05.10.2018 at about 8 pm she left the house and went and stayed in the house of maternal uncle. A missing complaint has been registered and she came to Harapanahalli Police. No other allegations have been made as against petitioner- accused for having sexually assaulted.
9. Be that as it may, even the statement of the victim itself goes to show that the victim has fallen in love with accused-petitioner and voluntarily she has gone along with accused-petitioner she is aged about 16 ½ years and movement of the victim clearly goes to show that the accused-petitioner has not forcibly taken her and they have stayed voluntarily at that time they had a sex, it shows that it is a consensual sexual act. Under such facts and circumstances, I feel that already charge sheet has been filed and accused-petitioner is not required for further investigation and interrogation. In that light, accused-petitioner is entitled to be released on bail.
10. Accordingly, petition is allowed and Petitioner-accused is ordered to be released on bail in Crime No.272/2018 of Harapanahalli Police Station for the offences punishable under Sections 366, 376 of IPC and Section 6 of POCSO Act subject to the following conditions:
1. Petitioner-accused 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 not leave the jurisdiction of the Court without prior permission.
3. He shall not tamper with the prosecution evidence directly or indirectly.
4. He shall mark his attendance on first of every month till the trial is completed.
Sd/- JUDGE ag