IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20th DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.5671/2018 BETWEEN :
Sri Narayana S/o Koraga Aged about 53 years R/at Hiliyana Village, Kundapura Taluk Udupi District-576 227 (By Smt. Haleena Ameer, Advocate for Sri S.Vishwajith Shetty, Advocate) AND :
… Petitioner State of Karnataka by Shankaranarayana Police Station, Udupi, Represented by State Public Prosecutor High Court Buildings Bengaluru-560 001.
… Respondent (By Smt. Namitha Mahesh B.G., HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.24/2018 (Spl.Case No.30/2018) of Shankaranarayana Police Station, Udupi District, for the offences punishable under Sections 376(f)(i) of Indian Penal Code and Sections 5(n), 6 and 8 of Protection of Children from Sexual Offences 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 the accused under Section 439 of Cr.P.C. praying to release him on bail in Crime No.24/2018 of Shankaranarayana Police Station for the offences punishable under Section 376(f)(i) of IPC and Sections 5(n), 6 and 8 of POCSO Act.
2. I have heard the learned counsel for the petitioner and the learned HCGP for the respondent- State.
3. The gist of the complaint is that accused is the uncle of the victim girl. The parents of the victim left the house when she was minor and they were residing separately. As such the victim girl used to reside along with her grand mother. Accused being her uncle developed affection with her and during December, 2017 he went to the house of the victim when she was alone, touched her body by pressing her breast and committed aggravated sexual assault on her. It is further alleged that again on 3.2.2018 at about 4.45 p.m., accused was sleeping in the house and the victim came from the school. At that time, accused asked her to provide food and when she went inside to provide food, he undressed the victim and committed aggravated sexual assault knowing fully that she was minor. The said fact was informed by the victim to her friend, who in turn informed the Head Master of the Government High School, who informed the police. On the basis of the same, a case has been registered.
4. It is the submission of the learned counsel for the petitioner that already charge sheet has been filed. Since from 8.2.2018 the accused-petitioner is in custody. She further submitted that contents of the complaint, the statement of the victim recorded under Section 164 of Cr.P.C. and the medical records give three different versions. There is no consistency with regard to the alleged incident. By referring to the medical records she further submitted that the doctor has opined that there is a delay of seven days and as such the opinion of the doctor cannot be given with regard to sexual assault. She further submitted that the birth certificate of the victim girl has not been produced to substantiate that she was minor as on the date of the alleged incident. She further submitted that the voluntary statement of the accused has been recorded wherein he has clearly stated that because of the family grudge he has been falsely implicated in the crime. She further submitted that petitioner is in custody since more than a year and he is ready to abide by any conditions imposed by this Court and ready to offer sureties. On these grounds, she prayed to allow the petition and to grant bail to the petitioner.
5. Per contra, the learned HCGP vehemently argued and submitted that there is a prima facie material to show that the petitioner-accused has sexually assaulted the victim who was minor as on the date of the incident. The statement of the victim girl recorded under Section 164 of Cr.P.C. and medical records corroborate the version of the victim to show that she has been sexually assaulted by the accused. She further submitted that hymen was also ruptured and no reasons have been stated as to under what circumstances, hymen was ruptured. The petitioner has not made out any good ground to release him on bail. On these grounds, she prays to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
7. As could be seen from the records and as contended by the learned counsel for the petitioner there may be three different versions, i.e., one in the complaint, second in the statement of the victim recorded under Section 164 of Cr.P. and third in medical records. But in totality, if the entire material is looked into, it clearly indicates the fact that the minor victim has been sexually assaulted by the petitioner-accused and the medical evidence also corroborates in this behalf to show that hymen was ruptured and certain injuries were also found over the body of the victim. Even the doctor has opined that the victim girl has been sexually assaulted, but other material is not available. When the victim was a minor and the petitioner-accused has sexually assaulted, it is clear that there is prima facie material to connect the accused to the alleged crime. Even under the provisions of Section 29 of POCSO Act, there is a presumption when the victim has also stated that her uncle has sexually assaulted her. Even the contents of the complaint and the statement of the victim clearly go to show that there was repeated sexual assault on the victim girl. Under the facts and circumstances of the case, I am of the considered opinion that this is not a fit case to release the petitioner on bail.
Hence, petition stands dismissed.
*ck/-
Sd/- JUDGE