IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.7172/2018 Between:
Sharath, S/o Late Basavarajappa, Aged about 25 years, Residing at Mallikarjuna Nilaya, Lingayath Street, Aralihalli Village, Bhadravathi Taluk, Shimoga.
Pin Code – 571124. ...Petitioner (By Sri C.N.Raju, Advocate) And:
State by Rural Police Bhadravathi, Shimoga, Represented by SPP, High Court of Karnataka at Bengaluru Pin Code No.560001. ...Respondent (By Sri.M.Divakar Maddur, HCGP) This Criminal Petition is filed under Section 439 of the Cr.P.C., praying to enlarge the petitioner on bail in Cr.No.164/2018 of Bhadravathi Rural Police Station, Shivamogga for the offences punishable under Sections 376(2)(i), 506 of IPC and Section 6 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 seeking to release him on bail in Special Case No.166/2018 on the file of I Additional Sessions Judge and Special Judge at Shivamogga in Crime No.164/2018 for the offences punishable under Sections 376(2)(i), 506 of IPC and Section 6 of POCSO Act.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State.
3. The gist of the complaint is that the victim girl is the daughter of the complainant. On 03.04.2018 at about 6.30 p.m. the sister of the complainant telephoned her and informed her that her daughter was taken to hospital for treatment and something has happened to her. Immediately, she went to the hospital and on enquiry, she came to know that she was playing with her friend near the house at about 3.00 p.m., while they were playing, petitioner/accused came there at about 5.00 p.m. and took the victim girl to his house, induced her to give gobi manchuri and he removed her clothes and he also by removing his clothes, he tried to have sex with her, victim girl screamed for help, then the petitioner/accused threatened her that if she scream, he will kill her, then the petitioner ran away from the house and thereafter, the victim girl returned to home. On the basis of the complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioner that the accused/petitioner has not committed any offences as alleged against him. He further by referring to the medical report and the examination of the victim, submitted that the hymen is intact and no other injuries were found over the body of the victim and the said fact clearly goes to show that the victim girl has not been sexually assaulted. He also further, by referring to the FSL Report dated 31.05.2018 submitted that no seminal stains were found on the articles, except the article No.7. Even article No.7 is the underwear which has been worn by the petitioner/accused. He further submitted that there is no incriminating materials as against the petitioner/accused to show that he has sexually assaulted the victim. He further submitted that the alleged offences are not punishable with death or imprisonment for life. If bail is granted, he is ready to abide by any conditions imposed by this Court and also ready to offer surety. On these grounds, he prays 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 statement of the victim recorded under Section 164 of Cr.P.C and history of the medical report and other documents substantiates the fact that the petitioner/accused has been sexually assaulted. He further submitted that there is a prima-facie material to show that the petitioner/accused is involved in the offence punishable under the POCSO Act. There is a presumption under Section 29 of the Act. The said presumption is rebuttable. No such material has been produced. If the accused/petitioner is enlarged on bail, he may tamper with the prosecution evidence. He may threaten the complainant and he may abscond and he may not be available for trial. On these grounds, he prays to dismiss the petition.
6. I have carefully and cautiously gone through the submission made by the learned counsel appearing for the parties and perused the records.
7. As could be seen from the statement of the victim recorded under Section 164 of Cr.P.C, the victim has categorically deposed before the Court about the sexual assault said to have been committed by the accused/petitioner. But, as could be seen from the medical examination report issued by Shivamogga Institute of Medical Science therein that hymen is intact and no other injuries were found over the body of the victim. By going through the said records and other things, it clearly goes to show that an attempt has been made by the petitioner/accused to sexually assault the victim. This is a matter which has to be considered and appreciated only at the time of trial. No doubt, the statement of the victim recorded under Section 164 of Cr.P.C discloses what has happened on the date of alleged incident. But as per Section 118 of the Evidence Act, the statement of the minor child has to be appreciated, under the circumstances, which have been narrated therein. Whether the said statement has been recorded under the force and duress, this is a matter, which is to be appreciated only at the time of trial.
Prima facie by looking into the material and other things, I feel that the petitioner/accused has made out a case to release him on bail.
8. In that light, petition is allowed.
Petitioner/accused is enlarged on bail in Special Case No.166/2018 on the file of I Additional Sessions Judge and Special Judge at Shivamogga in Crime No.164/2018 for the offences punishable under Sections 376(2)(i), 506 of IPC and Section 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 mark his attendance once in 15 days between 10.00 a.m., and 5.00 p.m., before the jurisdictional police.
4. He shall not tamper the prosecution evidence in any manner and shall not indulge in similar type of criminal activities.
5. He shall not tamper with the prosecution evidence directly or indirectly in any manner.
SD/- JUDGE NBM