IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.9604 OF 2018 BETWEEN:
Sri.Shoyub Khan S/o.Hameed Khan Aged about 28 years R/at No.3/1, Gurappanapalya Bengaluru-560 067. ...Petitioner (By Sri.Pratheep K.C, Advocate) AND:
The State of Karnataka Rep. by Siddaguntepalya Police Bengaluru City Represented by its State Public Prosecutor High Court of Karnataka Bengaluru-560 001 ... Respondent (By Sri. K.P. Yoganna, HCGP) This Criminal Petition is filed under Section 439 of Criminal Procedure Code praying to enlarge the petitioner on bail in Cr.No.189/2018 of Suddaguntepalya police station, Bengaluru for the offence punishable under Section 363 of IPC and Sections 6, 5 (L) of POCSO Act.
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. praying this Court to release him on regular bail in Crime No.189/2018 of Suddaguntepalya Police Station for the offences punishable under Section 363 of IPC and also under Sections 6 and 5(L) of POCSO Act.
2. I have heard the learned counsel for petitioner and the learned High Court Government Pleader for respondent-State.
3. Gist of the complaint are that, complainant - brother of the victim girl filed a missing complaint stating that her sister-victim who is studying in 10th standard has not written the exam but, stayed in her house and on 22.06.2018, she left the house in the morning and they made a search in her relatives and friends house and did not find her and therefore, the complainant sought for tracing the victim. Subsequently, during the course of investigation, accused and the victim girl was traced and the victim girl disclosed the fact that the petitioner is the friend of her elder brother and he used to come to her house and they both came in acquaintance with each other and they used to talk over phone. It is further alleged that the petitioner told the victim girl that he is loving her and he wants to marry her. On 22.06.2018, at about 6.00 A.M, the petitioner asked the victim girl to come out of her house. She came out of her house and he took her in uber car to Majestic. From there, the petitioner took her to a room situated at Dood Nana Darga, Hubli and stayed in the said room for about 4 days. During such period, the petitioner-accused sexually assaulted her and again petitioner took her to another place and stayed in a Darga. As the money was exhausted, they boarded a bus to Bengaluru and came to Bengaluru.
4. The submission of the learned counsel for the petitioner is that as per the birth certificate the date of birth of the victim is 30.04.2000 and the alleged incident has taken place on 22.06.2018 and as such, as on the date of the alleged incident she was major and she was knowing worldly affairs and the provision of Section 363 IPC and POCSO Act does not attract. He also submit that the charge sheet has been filed though the medical report of the victim girl shows that, the “Hymen of the victim girl was not in-tact” but the report indicates that there was consensual sex. Hence, the accused-petitioner is entitled to be released on bail and that he is ready to abide by any conditions that may be imposed on him by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner/accused on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that medical report clearly shows that the victim has been sexually assaulted and she has been forcibly taken to various places by the accused-petitioner. If accused-petitioner is released on bail, he may jump the bail or tamper with the prosecution witnesses or he may destroy the prosecution evidence. Hence, he prayed for dismissal of the petition.
6. I have carefully and cautiously gone through the contents of the complaint and perused the records.
7. As could be seen from the records made available, the date of birth of the victim as per the school records is on 30.04.2000 and the alleged incident has taken place on 22.06.2018 and as on that date, the victim had attained majority and she was knowing worldly affairs. Even as could be seen from the statement of the victim, it goes to show that she was having acquaintance with the petitioner-accused and he is the friend of her elder brother and they used to talk with each other and loving each other. Even as could be seen from the statement of the victim recorded under Section 164 of Cr.P.C before the Magistrate, she has not specifically stated that accused-petitioner sexually assaulted which is contrary to the statement given by the victim before the police. Charge sheet has already been filed. Under the above said facts and circumstances, it appears to be consensual sex by the petitioner and the victim. Hence, by imposing conditions, the petitioner is ordered to be released on bail.
8. In the light of the discussion held above, petition is allowed. The petitioner/accused is ordered to be released on bail in Crime No.189/2018 of Suddaguntepalya Police Station for the offences punishable under Section 363 of IPC and Section 5 (L) and 6 of POCSO Act, subject to the following conditions:
1. Petitioner/accused 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.
2. He shall not leave the jurisdiction of the Court without prior permission.
3. He shall not tamper with the prosecution evidence directly or indirectly.
4. He shall appear before the trial Court regularly on all dates of hearing.
Sd/- JUDGE ag