IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1843 OF 2019 BETWEEN:
SRI. GAJENDRA S/O. GANGAPPA AGED ABOUT 31 YEARS TIRUMALAKOPPA VILLAGE VOKKALERI HOBLI, TALUK AND DISTRICT KOLAR - 563 101. …PETITIONER (BY SRI. VEERANNA G. TIGADI, ADVOCATE) AND:
STATE OF KARNATAKA REP.BY SUB-INSPECTOR OF POLICE KOLAR RURAL POLICE STATION, KOLAR REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU- 560 001. ... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ALLOW THE PETITION BY GRANTING HIM BAIL IN SESSIONS CASE No.93/2018 FOR THE OFFENCE PUNISHABLE UNDER SECTION 376(D) OF IPC AND SECTION 6 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 PENDING ON THE FILE OF THE LEARNED II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This is the third bail petition filed by the petitioner/accused No.3 in S.C.No.93/2018.
2. First petition was dismissed reserving liberty to the petitioner to move for bail before the trial Court by order dated 11/06/2018 in Crl.P.No.3794/2018. Subsequent petition was dismissed by order dated 02/01/2019 in Crl.P. No.6346/2018. Petitioner has now sought for the bail on changed circumstances inasmuch as the FSL report collected by the Investigating Agency rule out the involvement of the petitioner in the alleged offences.
3. Learned counsel appearing for the petitioner has referred to the relevant opinion of the FSL, which reads as under:
“ In view of the above observation, T.M.Chaithra D/o. Muniappa sample blood sent in item no.2 is the biological mother and source of DNA and Vinay S/o. Narayanappa, sample blood sent in item No.5 is the biological father and source of DNA of male baby sample blood sent in item No.1.”
4. Undisputedly, the report relied on by the petitioner is an opinion evidence which cannot be taken as a conclusive evidence in disproof of the charges, though it can be taken as the proof of paternity of the child.
5. In the statement of the victim recorded under Section 164 of Cr.P.C., she has unequivocally stated that the petitioner herein committed sexual intercourse on her 5 to 6 times. There is also reference in the other statements made by the victim that one Murthy, Vinay, Kiran were also on friendly terms with her. But those persons were not sent up for trial. FSL report ascribes the paternity of the child to one of them namely, Vinay who has been named in the statement. In the said circumstance, whether the expert opinion could prevail over the direct evidence of the prosecutrix is a matter for consideration of the trail Court.
6. Having regard to the nature of the evidence collected by the Investigating Agency, it is not proper for this Court to express any opinion on the contentions urged by the learned counsel for the petitioner. It is not a case where there is no evidence against the petitioner. Since the person named in the FSL report is not sent up for trial, it is for the trial court to consider the additional material produced before it and to arrive at an independent conclusion as to whether on that account the petitioner could be absolved of the charges.
7. As the learned additional SPP has submitted that based on the additional material namely the FSL report, supplementary charge sheet has been filed even against the aforesaid Vinay, it is not proper for this Court to express any opinion on the said document. The contentions urged by the learned counsel for the petitioner cannot be a ground to enlarge the petitioner on bail.
8. Having regard to the above facts and circumstances, the trial Court is directed to take up the matter on day today basis as mandated in Section 35 of POCSO Act and complete the trial within three months from the date of communication of this order.
Petition is disposed of in the above terms.
tsn* Sd/-
JUDGE