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IN THE HIGH COURT OF KARNATAKA AT BENGALURU (DHARWAD BENCH)
Shivashankar Amarannavar, J.
Swapnil Vasant Rakshe - Appellant
Versus
State Of Karnataka - Respondent
Criminal Petition No. 100430 of 2020
Decided On : 01-09-2020
Bail - Offences under IPC and POCSO Act - Sections 376, 366(A), 4, 6, 8 of POCSO Act, 2012
Fact of the Case:
The petitioner-accused filed a bail application under Section 439 of Cr.P.C. seeking bail in a case registered for offences under Sections 376, 366(A) of IPC and Sections 4, 6, 8 of POCSO Act, 2012. The victim girl, aged 14, alleged that the accused sexually assaulted her after inducing her on his motor cycle and shifting her to an apartment.
Finding of the Court:
The court considered the victim's statement, medical examination reports, and the age of the victim. It noted inconsistencies in the victim's statements and found no rapture of the hymen, indicating a possible love affair between the victim and the accused. The court also cited the completion of investigation and absence of criminal antecedents of the accused.
Issues: The issues revolved around the credibility of the victim's allegations, the nature of the relationship between the victim and the accused, and the potential threat to the complainant and prosecution witnesses if bail was granted.
Ratio Decidendi: The court applied the principles for granting bail, considering the presumption of innocence, completion of investigation, and absence of criminal antecedents of the accused. It emphasized the need to impose stringent conditions to address the prosecution's concerns.
Final Decision: The court allowed the bail petition, subject to the petitioner-accused executing a personal bond, refraining from hampering the investigation or tampering with witnesses, and appearing before the court regularly.
JUDGMENT
Shivashankar Amarannavar, J. - This petition is filed by the petitioner-accused under Section 439 of Cr.P.C. seeking bail in Crime No.78/2019 of Khade Bazar Sub-division, Camp Police Station registered for the offence punishable under Sections 376, 366(A) of IPC and Sections 4, 6 and 8 of POCSO Act, 2012.
2. The case of the prosecution is that on the complaint given by one Smt.Padma Chandrakant Gurav of Vijayanagar Belagavi a case came to be registered in Crime No.78/2019 for the offences punishable under Section 376, 342, 366(A) of IPC and Sections 4, 6, 8 of POCSO Act, 2012. In the complaint, it is stated that complainant is residing with her family members and one of her daughter i.e. victim girl is studying in IX standard in G.A.School Belagavi and she use to attend her class daily and the petitioner used to follow her and seeing the same the complainant warned the petitioner not to do so since her daughter is teenage girl and not to disturb her and the petitioner agreed to her advice. On 24.11.2019 the daughter of complainant victim girl left the house at 8.30 pm saying that she is going to attend the naming ceremony in the house of one Hulaji in the same street where the complainant and her family residing. But she did not returned to home up to late night and the complainant searched for victim girl whole night here and there and enquired her other relatives but all went in vain she did not traced out on that night. So on the next day on 25.11.2019 the complainant and others went to Camp Police Station Belagavi and requested the Police orally that her daughter victim girl aged 14 years is missing and the Police gave assurance that they will try. On 26.11.2019 they started searching the victim girl but she did not traced out. Thereafter at 7.30 p.m. the complainant and her relatives returned to home and surprisingly victim girl was in their house and after enquiry she gave the history that on 24.11.2019 the petitioner took her on his Motor Cycle by inducing her and shifted her to one apartment and gave kiss and thereafter after open her pant assaulted sexually repeatedly on 25.11.2019 whole night. So the complainant went to Police Station and filed her complaint. Police arrested the petitioner. The petitioner-accused has filed the bail application before III Addl. Sessions Judge, Belagavi and the same is dismissed. Therefore, the petitioner-accused is before this Court seeking bail.
3. Heard the learned counsel for the petitioner-accused and learned HCGP for respondent-State.
4. It is the submission of the learned counsel for the petitioner-accused that the incident has taken place on 24.11.2019 and complaint came to be registered on 26.11.2019 and there is a delay in filing the complaint. It is his further submission that there is inconsistency in the first information and further statement of the complainant. It is his further submission that as per the submission of the victim girl recorded by the Police, victim girl herself called accused. It is his further submission that there are inconsistencies in the statement of the victim girl recorded by the Police and the statement recorded by the Magistrate under Section 164 of Cr.P.C. It is his further submission that in the medical examination report, the history is mentioned as kidnapping and sexual assault at 9 pm on 26.11.2019 at petitioner-accused house at Sadashiva nagar, Belagavi. But as per the prosecution case, alleged incident has taken place on 24.11.2019. It is his further submission that as per the medical examination report, the dental age of the victim girl is 15 to 16 years and the skeletal age is below 18 years. It is his further submission that in the medical examination report of the victim girl, there is mention of old hymen tear present and there was no rapture of hymen and therefore, no sexual intercourse has taken place. It is his further submission that in the medical examination report of the petitioner-accused he has given history that the
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