IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8621/2018 BETWEEN:
Sri.Shivakumar S/o.Nagaraj, Aged 22 years, R/o.Chaldiganahalli Village, Vemgal Hobli, Taluk and District: Kolar-563 101.
…Petitioner (By Sri. Veeranna G. Tigadi, Advocate) AND:
State of Karnataka Represented by Sub-Inspector of Police, Vemgal Police Station, Represented by State Public Prosecutor, Hon’ble High Court of Karnataka, Bengaluru-560 001. ...Respondent (By Sri. I.S. Pramod Chandra, SPP-II) This Criminal Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.180/2018 of Vemagal Police Station, Kolar District for the offence punishable under Section 363, 376, 342, 506 of IPC and Section 4 of POCSO Act.
This Criminal petition coming on for Orders, this day, the Court made the following:
O R D E R The petitioner has sought for an order of regular bail under Section 439 of Cr.P.C. in S.C.No.128/2018 registered for the offences punishable under Sections 363, 376, 342, 506 of IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012.
2. Investigation is completed and charge sheet is laid against the petitioner for the above offences.
3. The learned counsel for the petitioner submits that the allegations made in the complaint as well as the material produced along with the charge sheet indicate that the victim on her own accord accosted the accused. Though, there are allegations of forcible sexual intercourse, the medical report indicate that no such violence had been committed against the victim. Further, having regard to the over all circumstances of the case, there is no apprehension of the petitioner/accused threatening the victim and hence, seeks for his release on bail on such terms and conditions to be imposed by this Court.
4. The learned SPP-II appearing for the respondent-State opposes the application and submits that the allegations made against the petitioner prima-facie make out a serious offence against a minor and hence, the petitioner is not entitled for bail.
5. On considering the rival submissions and on perusing the material produced along with charge sheet, it is seen that a missing complaint was lodged by the father of the victim on 25.06.2018. Victim was traced on 26.06.2018. In her statement under Section 161 she has alleged that she was abducted by the petitioner on the pretext of marrying her and she was kept in a room and subjected to repeated sexual intercourse. Contrary to this assertion in her statement under Section 164 of Cr.P.C. she has stated that she was in love with the petitioner; she approached her parents and sought for their approval. But, their marriage was opposed by her parents. On 24.06.2018 the accused threatened to commit suicide. At about 01.00 P.M. he took her to Srinivaspur and thereafter, kept her in a house of his friend by name Ambarish. By then, a missing complaint was lodged by her father.
6. In her statement under Section 164 of Cr.P.C., she has no where alleged that she was subjected to sexual intercourse by the petitioner. The medical certificate also does not indicate any sexual violence against the petitioner. The medical certificate issued by the S.N.R. District Hospital, Kolar, indicate that the victim was examined on 26.06.2018. Findings of the Medical Officer are as under:
“1) Kum. Chaitra has attained menarche. 2 & 3) There are no signs of sexual assault or any stains on genitalia of Kum.Chaitra.
4) No fresh/old injuries noted on body of Kum.Chaitra.
5) Kum.Chaitra has undergone radiological examination & her age estimation report is enclosed.
6) Kum.Chaitra’s Blood Group - ‘O’ positive.
7. The said report is in conformity with the statement made by the victim under Section 164 of Cr.P.C. As a result, there seems to a good case for abduction but not for rape under Section 376 of IPC. In that view of the matter, the custody of the petitioner is not proper to be extended solely on the ground of gravity of the offence. Hence, considering the above facts and circumstances, the petition deserves to be allowed.
8. Accordingly, the Criminal Petition is allowed.
a) Petitioner is ordered to be enlarged on bail on obtaining a bond in a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the likesum to the satisfaction of the jurisdictional court.
b) Petitioner shall appear regularly before the court as and when required.
c) Petitioner shall not threaten or allure the prosecution witnesses in whatsoever manner.
d) Petitioner shall not get himself involved in similar offences.
Sd/- JUDGE SV