IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8th DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.7941/2018 BETWEEN :
Ubed Pasha @ Saddam S/o Munaver Pasha Asangihal, Aged about 22 years C/o Scrap Godown of Ghous 3rd Cross, Near Jamia Masidi Maruthi Nagar, Hegganahalli, Bengaluru-560 091.
(By Sri Shaikh Saoud, Advocate) AND :
State by Rajgopalnagar Police Station Bengaluru-560 091 Represented by HCGP High Court Building Bengaluru-560 001.
(By Sri M. Divakar Maddur, HCGP) … Petitioner … Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.274/2018 (Spl.C.No.547/2018) of Rajagopalnagar Police Station, Bengaluru, for the offences punishable under Sections 363, 366, 376 of Indian Penal Code 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 is filed by accused No.1 under Section 439 of Cr.P.C. to release him on bail in Special Case No.547/2018 pending on the file of Child Friendly Court, Bengaluru, Urban District (CCH.55), Bengaluru, arising out of Crime No.274/2018 of Rajgopalnagar Police Station for the offences punishable under Sections 363, 366 and 376 of IPC and Section 6 of POCSO Act.
2. I have heard the learned counsel for the petitioner and the learned HCGP for the respondent- State.
3. The gist of the complaint is that the mother of the victim filed a missing complaint on 5.5.2018 alleging that on 4.5.2018 at about 8.45 a.m. her daughter went out of the house, but she did not return. She made all efforts to trace her, but she could not trace her. She suspected about the accused. On the basis of the said complaint, investigation was conducted and the victim was traced. On enquiry she revealed that she was loving the petitioner herein since more than two months prior to the alleged incident and on 4.5.2018 at about 9.00 a.m. on the pretext of marrying the victim, the petitioner took her to Jalahalli Cross and from there he took her to Tumkur and native place Hebbur and thereafter to Shivanasamudra where they took room on rent and on that day they had sexual intercourse. On 5.5.2018, the respondent-police have secured them.
4. It is the submission of the learned counsel for the petitioner that already trial has commenced. The missing girl has been examined as PW.1 and her mother as PW.2 and other circumstantial witnesses as PWs.3 to 7. All the witnesses have not supported the case of the prosecution and there is no connecting link so as to prove the guilt of the accused. The petitioner is languishing behind the bars unnecessarily and the trial may take some more time. He further submitted that victim was aged about 16 years at the time of the alleged incident. Even if the entire material is taken into consideration, it is a consensual sexual act and there was no force so as to attract the provisions of Section 376 of IPC. He further submitted that the statement of the victim-PW.1 clearly goes to show that she has not been sexually assaulted by the petitioner. He further submitted that the accused is ready to abide by any conditions and to offer sureties. On these grounds, he prayed to allow the petition by granting bail to the petitioner.
5. Per contra, the learned HCGP vehemently argued and submitted that the victim was a minor at the time she has been sexually assaulted. The petitioner had forcibly took her to various places and he sexually assaulted when he took her to Shivanasamudra and because of the pressure, the victim has not supported the case of the prosecution and has turned hostile. Even the medical evidence clearly goes to show that there was sexual assault on the victim by the accused. He further submitted that the trial is at concluding stage and at this stage if the petitioner is released on bail, he may abscond and may not be available for trial. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
7. As could be seen from the records, in Special CaseNo.547/2018, pending on the file of trial Court, the victim has been examined as PW.1, her mother as PW.2 and other witnesses as PWs.3 to 7. They have not supported the case of the prosecution and have been treated as hostile. It is the submission of the learned HCGP that the doctor and other witnesses have to be examined and when all the material witnesses including the victim have not supported the case of the prosecution and in her evidence she has stated that she has not been sexually assaulted, then under such circumstances, I feel that by imposing some stringent conditions, if the petitioner is released on bail, it would meet the ends of justice.
Accordingly, the petition is allowed and accused- petitioner herein is enlarged on bail in Special Case No.547/2018 pending on the file of Child Friendly Court, Bengaluru, Urban District (CCH.55), Bengaluru, arising out of Crime No.274/2018 of Rajgopalnagar Police Station for the offences punishable under Sections 363, 366 and 376 of IPC and Section 6 of POCSO Act, subject to the following conditions:-
i) Petitioner shall execute a personal bond for Rs.2,00,000/- (Rupees two Lakhs only) with two sureties for the like sum to the satisfaction of the trial Court.
ii) He shall be regular in appearing before the trial Court till the trial is completed. If he jumps one day in attending the trial, the trial Court is at liberty to take the petitioner to custody.
iii) He shall not indulge in similar type of activities.
Sd/- JUDGE *ck/-