IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL PETITION No.9582/2018 BETWEEN:
KUMARA, S/O PUTTEGOWDA, AGED ABOU 40 YEARS, R/AT: ANNIGANAHALLI VILLAGE, KASABA HOBLI, HASSAN TALUK, HASSAN DISTRICT – 573 201.
(BY SRI B. LETHIF, ADVOCATE) AND:
THE STATE OF KARNATAKA BY HASSAN RURAL POLICE STATION, HASSAN DISTRICT, REPRESENTED BY SPP, HIGH COURT BUILDING, BANGALORE – 560 001.
(BY SRI HONNAPPA, HCGP) …PETITIONER …RESPONDENT THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.277/2018 REGISTERED BY HASSAN RURAL POLICE STATION, HASSAN FOR THE OFFENCES P/U/S 448, 376, 323 AND 506 OF IPC AND SECTION 4 OF POCSO ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for petitioner and the learned High Court Government Pleader for the respondent - State. Perused the Records.
2. The brief factual matrix of the case is that on 04.09.2018 when C.Ws. 2 and 3, who were aged 5 and 8 years respectively, were in their house at Anniganahalli Village, the accused person trespassed into their house and committed rape on the victim girl – C.W.2 by taking her to the terrace of the said house. This was actually seen by C.W.3 when the accused was doing that particular act.
3. Learned counsel for the petitioner strenuously submitted that at the most the offence falls under Section 7 of the POCSO Act as there is no penetration as alleged and also there is no penetration as per the medical report.
4. The medical report clearly shows that there was no penetration but the history stated by the victim girl during the course of investigation shows that there was sexual assault on her. The victim girl’s statement has been recorded under Section 164(5) of Cr.P.C and as per the said statement, she has categorically stated about the insertion of penis to the private part of the victim girl. Therefore, when the victim girl has stated about the insertion of the private part of the accused to the private part of the victim girl and if penetration is there, how much of penetration is not a question.
5. Therefore, under the above said circumstances, at this stage, the Court cannot overcome the statement of the victim girl and C.W.3 who is none other than the sister of the victim girl. Under the above said circumstances, I do not find any strong reason to enlarge the petitioner on bail. Hence, the petition being devoid of merit, the same is accordingly dismissed.
6. Whatever the observations made by this Court are only for the disposal of this petition and it should not in any way persuade the trial Court while dealing with the matter on merits. The trial Court shall strictly adhere to the evidence that may be adduced by the prosecution before that Court.
Sd/- JUDGE VP