IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION No.6397/2018 BETWEEN:
Sri.Malakappa Bheemappa Bhajantri, S/o Bheemappa Bhajantri, Aged about 26 years, R/at Kodandarama Reddy House, 6th Cross, Kodathi Village, Bengaluru-560 035.
Also r/at:
Bommanahalli Village, Muddebihala Taluk, Bijapur District, (now in Judicial Custody) (By Sri.Vishnu Hegde, Advocate) AND:
The State of Karnataka By Varthur Police, By State Public Prosecutor, High Court Building, Bengaluru- 560 001.
(By Smt.Namitha Mahesh B.G., HCGP) …Petitioner …Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.37/2018 (Spl.C.No.249/2018) of Varthur Police Station, Bengaluru City, for the offence punishable under Section 376 of Indian Penal Code and Section 6 of Protection of Children from Sexual Offences Act, 2012.
This Criminal Petition coming on for Orders this day, the Court made the following:-
O R D E R The present petition has been filed by the petitioner/ accused under Section 439 of Cr.P.C. to release him on bail in Special Case No.249/2018 (Crime No.37/2018) of Varthur Police Station, Bengaluru City, for the offence punishable under Section 376 of Indian Penal Code and Section 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the ‘Act’ for short).
2. I have heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
3. The gist of the case of the prosecution is that on 24.2.2018 at about 10.00 a.m. when the victim who is aged about six years was alone in her house, accused sexually assaulted by closing her eyes and by removing her clothes. When the complainant came back she was weeping and she narrated the alleged incident to the complainant, immediately the child was also taken to the hospital and complaint was registered.
4. It is the submission of the learned counsel for the petitioner that already the evidence of the victim and victim’s mother has been recorded as PWs.1 and 2. PW1 has not supported the case of the prosecution and she has been treated as hostile. So also the mother of the victim has also not supported. He further submitted that the alleged incident has taken place on 24.2.2018 in between 10.00 a.m. to 10.30, but the school records of New Mechale English School goes to show that the victim has attended the school on 23.2.2018 and 24.2.2018 from 9.00 a.m. to 3.30 p.m. and from 9.00 a.m. to 12.30 p.m. respectively. If the child is in the school, then there is no question of accused sexually assaulting the victim. He further submitted that when the victim herself has come before the Court and deposed that nothing has been done to her by the accused, under such circumstances the petitioner/accused is entitled to be released on bail. He is ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition and to release the petitioner on bail.
5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that in the statement under Sections 161 and 164 of Cr.P.C. the victim girl has clearly stated what has happened and the said evidence also corroborates with the medical examination of the victim. Even the history given by the victim clearly goes to show that the alleged incident has taken place on 24.2.2018 on Saturday at about 6.30 p.m. That means it clearly goes to show that the alleged incident has taken place after the victim has come from the school. She further submitted that the medical reports also clearly indicates the fact that there is sexual assault on vagina part and bleeding was also there. She further submitted that the doctor has given information that sexual assault cannot be ruled out. It co-relates with the First Information Report. All these material clearly indicates that it is the accused who has sexually assaulted the victim. She further submitted that under Section 29 of the POCSO Act, there is a presumption. The material which has been produced clearly goes to show the involvement of the accused in the alleged crime. He has to disprove that he is innocent, the same requires to be tried and thereafter the Court has to take a decision on the said point. She further submitted that if the petitioner/accused is enlarged on bail, already he has influenced the victim and mother and they have been treated as hostile and other witnesses also will be tampered and they may not support the case of the prosecution. She further submitted that the doctor and other important witnesses have to be examined to substantiate the case of the prosecution. There is ample material and no case has been made out by the petitioner/accused to release him on bail. On these grounds she prayed to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and the submissions made by the learned counsel appearing for the parties and perused the records.
7. On close scrutiny of the evidence which has been given before the Court below and the school certificate which has been produced along with the petition and the medical certificate which has been produced in this behalf there is no consistency with regard to the alleged sexual act is concerned. When the matter if it is closely considered, then under such circumstances, I feel that the petitioner/accused is entitled to be released on bail by imposing some stringent conditions, that too when already the victim has been examined and she has not supported the case of the prosecution.
8. In the light of the discussions held by me above, the petition is allowed and petitioner/accused is ordered to be released on bail in Special Case No.249/2018 (Crime No.37/2018) of Varthur police station, Bengaluru City, for the offence punishable under Section 376 of Indian Penal Code and Section 6 of the POCSO Act, subject to the following conditions:
i) The petitioner 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.
ii) He shall not tamper with the prosecution evidence directly or indirectly.
iii) He shall be regular in attending the trial.
iv) He shall not leave the jurisdiction of the Court without prior permission of the Court.
Sd/- JUDGE *AP/-