IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA CRL.P. NO.7597/2019 BETWEEN SRI.SANTHOSH @ SANTHU S/O. LATE MARISWAMY AGED ABOUT 26 YEARS RESIDING AT NO.39, MEDHAR BLOCK, 3RD MAIN, OPPOSITE SAWMIL BAMBOO BAZAR MYSURU-570 001. ... PETITIONER (BY SRI. D.C. SRINIVASA, ADVOCATE) AND 1. STATE OF KARNATAKA BY C.S. PURA POLICE REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU - 560 001 2. SMT. PUSHPALATHA K.S W/O UMAMAHESH AGED 36 YEARS SUPERINTENDENT, GOVT. GIRLS CHILD HOME AMARJYOTHINAGARA TUMKURU - 572 102 … RESPONDENTS (BY SRI. ROHITH B.J., HCGP FOR R1 R2 - SERVED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.23/2019 OF CHANDRASHEKARPURA P.S., TUMAKURU FOR THE OFFENCE P/U/S 376 R/W 34 OF IPC, SECTION 4 AND 6 OF POCSO ACT AND SECTION 3(1)(W) (i)(ii),3(2)(va) OF SC/ST (POA) ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioners and the learned HCGP for the Respondent–State. Learned HCGP submits that, Respondent No.2-complainant has already been served with the notice of this case. But, the complainant (R2) remained absent before the Court. Perused the records.
2. Petitioners are arraigned as Accused No.3 in Crime No.23/2019 of Chandrashekarpura Police Station, Tumakuru District, for the offence punishable under Section 376 r/w 34 OF IPC, Section 4 and 6 of POCSO Act and Section 3(1)(w) (i)(ii), 3(2)(va) of SC/ST (POA) Act, now pending on the file of III Addl. District and Sessions and Special Judge, Tumakuru.
3. The brief facts of the case are that, the alleged victim girls, aged 14 to 15 years are residents of Kallugu Village, Tumkur District and they alleged to have left the house on 01.02.2019 and on they having been searched by the BASCO Child Line on 15.02.2019, they were sent to Government Girls Children Home (Sarakari Balakiyara Bala Mandira), Tumakuru through the District Children Welfare Committee-II and admitted there on 12.03.2019. When such being the case, one Smt. Pushpalatha K.S., Superintendent of Government Girls Children Home (Sarakari Balakiyara Bala Mandira), met the victim girls, before whom, the victim girls disclosed that, one lady by name Lakshmi told the victim girls to meet a person by name Abhi at Nagamangala and accordingly they met one Abhi in Nagamangala and from there, along with said Abhi they went to Mysuru and there the said Abhi and his friends committed sexual act on the said girls. On the basis of such information, the said Superintendent lodged a complaint before the Chandrashekarapura Police and the same was registered in Crime No. 23/2019 against the said Abhi and Lakshmi for the offence punishable under Sections 370-A and 376 r/w. 34 of IPC and Sections 4 and 6 of POCSO Act and also under Section 3(1)(w)(i)(ii),3(2)(v-a) of SC and ST Act.
4. On the basis of the complaint, the police started investigation in the matter. But, subsequently, after few days, the said victim girls have turned volte- face and they have stated before the Magistrate and in the presence of the said Superintendent of the Government Child Home on 23.04.2019 that, the said Abhi and Lakshmi have not done anything to them. However, at the guidance of said Lakshmi they met Abhishek @ Abhi and along with him they went to Mysuru and when they reached Mysuru, the said Abhi told them to go back to Bengaluru by paying Rs.200/-. But, they did not come back to Bengaluru, however, they told Abhi that, he need not worry about them and they will take care of themselves and they would go back to Bengaluru. But, they did not come back to Bengaluru and they stayed in Mysuru for about 15 days near Railway Station. The accused/petitioner who was the auto driver, have took them on the assurance that they would send them to their places at Bengaluru and by saying so, they took them to different places and exploited them sexually and thereafter, they were sent back to Mysuru Railway Station and from there they came back to Bengaluru, and thereafter, it appears they gave the said statement to the complainant Smt. Pushpalatha. On the basis of the said allegations, the police have deleted the names of the Abhi and Lakshmi and incorporated the name of the petitioner and others in the said case for the above said offences.
6. Looking to the nature of the allegations and facts of the case, there are two divergent views projected by the victim girls. Firstly, the victim girls have stated that, when they reached Mysuru, the said Abhi met them and he and his friends exploited them sexually. Secondly, the victim girls have stated that, when they met one Abhi, he told them to go back to Bengaluru, but they did not come to Bengaluru. On the other hand, they met some auto drivers and in turn they took the victims to different places and they exploited the victim girls sexually and left them in Mysuru Railway Station. No investigation has been made to detect that, whether the accused persons are the friends of the said Abhi or they are different persons, and the information in that regard is also not forthcoming in the two statements of the victim girls. Therefore, the very happening of the alleged incident itself is doubtful. Hence, the above aspects have to be thrashed-out during the course of full-dressed trial. Further, even though the victim girls are shown to be aged 14 and 15 years, but, at this stage, no material is placed before this court with regard to the exact age of the victim girls. Therefore, even this aspect is also to be thrashed-out during the trial. Therefore, specifically considering the two divergent statements of the victim girls in not making the said allegations against the accused persons in the first statement and thereafter making the above allegations against accused Nos.1 and 2 in the second statement and implicating them in this case, also play a dominant role. Therefore, the said allegations have to be proved during the course of trial.
The accused Nos. 1 and 2 who are standing on the same footing have been enlarged on bail by this Court in Crl.P.No.5950/2019, wherein this Court in detail considered the above said factual aspects. Petitioner has already arrested and since then he has been in judicial custody and also it appears that he is no more required for further investigation in this case, in my opinion, the petitioner-accused No.3 is entitled to be enlarged on bail even on the ground of parity. Accordingly, I pass the following:-
ORDER The petition is allowed. Consequently, the petitioner (A3) shall be released on bail in connection with Crime No.23/2019 of Chandrashekarapura Police Station, Tumkuru District for the aforesaid offences, which is now pending on the file of the III Addl. District and Sessions at Tumakuru, subject to the following conditions:-
i) The petitioner shall execute his personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two sureties for the like-sum to the satisfaction of the jurisdictional Court.
ii) The petitioner shall not tamper the prosecution witnesses.
iii) The petitioner shall appear before the jurisdictional Court on all future hearing dates, unless exempted by the Court for any genuine cause.
iv) The petitioner shall not leave the jurisdiction of the trial Court without prior permission of the Court, till the case registered against him is disposed of.
v) The petitioner shall mark his attendance before the concerned Investigating Officer once in a week i.e, on every Sunday between 10.00 am. and 5.00 pm. till filing of the charge sheet filed or for a period of two months, whichever is earlier.
Sd/-
JUDGE SB