The court considered the victim's consistent allegations, medical evidence, and pending DNA report in rejecting the bail petition.

ORDER :

1. This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner in Crime No. 104/2021 of Vijayapura Police Station, Bengaluru Rural district for the offences punishable under Sections 376, 506 of IPC and Sections 4 and 6 of POCSO Act.

2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.

3. The factual matrix of the case is that this petitioner subjected the minor girl for sexual act continuously. The victim was pursuing her education in the college and this petitioner on the guise of dropping her, he took her in the motorcycle to eucalyptus garden and subjected her for sexual act against her wish and also threatened her not to reveal the same to anybody as a result, the victim became pregnant. Based on the complaint, the police have registered the case and after completion of the investigation, charge-sheet has been filed against this petitioner and the victim was subjected to the medical examination and her statement also recorded by the learned Magistrate under Section 164 of Cr.P.C.

4. The learned counsel appearing for the petitioner would submit that the victim made her statement before the Conciliator on 07.08.2021 wherein she made an allegation against one Srikanth and subsequently on 09.08.2021, she made an allegation against this petitioner alleging that this petitioner subjected her for sexual act but the act of both i.e. Srikanth and this petitioner was made with the consent of the victim hence, the question of invoking Section 376 of IPC and Sections 4 and 6 of POCSO Act does not arise and the counsel further submits that in her 164 statement, she made an allegation against this petitioner but the very case of the prosecution is doubtful and investigation has been completed and charge-sheet also filed, hence, the further custodial trial of the petitioner is not required and prayed to allow the petition.

5. Per contra, the learned High Court Government Pleader appearing for the State would submit that this petitioner being cousin sister's husband, subjected the victim girl who is aged about 17 years for sexual act against her wish on the guise of dropping her to the house as a result, she became pregnant and her pregnancy was terminated and her blood sample was sent to DNA test on 07.09.2021 and the report is awaited and apart from that 164 statement of the victim was also recorded by the learned Magistrate wherein she has pointed out the role of the petitioner in subjecting her for sexual act and not stated anything about the said Srikanth and the medical evidence also supports the case of the prosecution hence, there is a prima facie case against this petitioner and prayed to dismiss the petition.

6. Having heard the respective counsel appearing for the parties and also on perusal of the material available on record it discloses that in the complaint the specific allegation is made against this petitioner is that he used to visit her near the college on the guise of dropping her to the house but he did not take her to the house but he took her to the eucalyptus garden and subjected her for sexual act and thereafter the said act was continued for 2-3 times and as a result, she became pregnant. In the complaint, the victim has not whispered anything about one Srikanth but in the statement made before the Conciliator, referred the name of one Srikanth and in subsequent statement made before the Magistrate, the allegation is against this petitioner only not against said Srikanth. When the victim became pregnant, the pregnancy was terminated and blood sample was sent to RFSL and the report is awaited with regard to the DNA and in her 164 statement, she categorically made an allegation against this petitioner that he being the brother-in-law of the victim, took her to a lonely place and subjected her for sexual act and threatened her as a result, she became pregnant and when the report is awaited with regard to th