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IN THE HIGH COURT OF KARNATAKA
K. Natarajan, J.
Linganna - Appellant
Versus
State of Karnataka & Ors. - Respondents
Criminal Petition No. 496 of 2022
Decided On : 17-03-2022
POCSO - Bail Petition - The court granted bail to the petitioner-accused after finding that there was no evidence of aggravated sexual assault on the victim, and therefore, the offence fell under Section 7 of the POCSO act.
Fact of the Case:
The petitioner-accused filed a bail petition for offences punishable under Sections 448, 376aB, 506 of IPC and Section 6 of POCSO act, based on the complaint by the mother of the victim girl alleging sexual assault on her minor daughter.
Finding of the Court:
The court found that there was no evidence of aggravated sexual assault on the victim, as indicated by the medical examination report and the FSL report. The court also noted the age of the petitioner and the completion of the investigation and charge-sheet filing.
Issues: The issues revolved around the nature of the sexual assault and the appropriate section of the POCSO act applicable to the case, considering the victim's statement and the medical evidence.
Ratio Decidendi: The court's decision was influenced by the lack of evidence of aggravated sexual assault, the completion of the investigation, the age of the petitioner, and the absence of clarity in the victim's statement regarding aggravated sexual assault.
Final Decision: The trial Court was directed to release the petitioner-accused on bail, subject to certain conditions.
Key Points: - The complaint alleged sexual assault of a minor girl, invoking Sections 448, 376aB, 506 of IPC and Section 6 of POCSO (!) (!) . - The court found no evidence of aggravated sexual assault based on medical and FSL reports, concluding the offence fell under Section 7 of the POCSO act (!) (!) (!) . - Due to lack of aggravated assault evidence, completed investigation, age and health of the petitioner, and unclear victim statement, bail was directed under appropriate conditions (!) (!) (!) (!) .
JUDGMENT
K.Natarajan, J. - This petition is filed by the petitioner-accused under Section 439 of Cr.P.C., for granting bail in Crime No.114/2021 (Special Case No.369/2021 of Madhugiri Police Station, Tumakuru pending on the file of additional District and Sessions Judge (FTSC-1), Tumakuru for the offences punishable under Sections 448, 376aB, 506 of IPC and Section 6 of POCSO act.
2. Heard the arguments of learned counsel for the petitioner and learned High Court Government Pleader for the respondent No.1-State. Though respondent No.2 is served, but remained unrepresented.
3. The case of the prosecution is that the complainant who is the mother of the victim girl filed a complaint to the Police on 03.09.2021 alleging that the petitioner is said to have sexually assaulted her minor daughter aged about 11 years 10 months. Based upon the complaint, the Police arrested the petitioner on 04.09.2021 and he was remanded to the judicial custody. His bail petition came to be rejected during the investigation stage. Hence, he is before this Court after filing of the charge-sheet.
4. Learned counsel for the petitioner has contended that the offence under Section 6 of POCSO act is not made out. Of course it may attract Section 7 of the POCSO act for sexual assault, but not aggravated penetrative sexual assault and the medial report also does not reveal the penetrated sexual assault. The age of the petitioner is 78 years and he is suffering from Diabetes. He is in custody for more than six months. He is ready to abide by the conditions that may be imposed by this Court. Hence prayed for granting bail.
5. Learned High Court Government Pleader seriously objected the same and contended that the victim girl in her statement under Section 164 of Cr.P.C. has categorically stated about the aggravated sexual assault made by the petitioner-accused and if the petitioner is granted bail, he may tamper the prosecution witnesses and abscond from the case. Hence, prayed for dismissing the petition.
6. Having heard the arguments and on perusal of the records, especially in the statement under Section 164 of Cr.P.C., the victim girl has stated that the accused removed her clothes including under garment and kept his private part on her. She has also shown the same by signs towards both the legs and she has identified the accused. The medical examination report especially the clinical examination report and FSL report reveals that the hymen was intact and there is no injury on the private part of the victim which suggests that there is no aggravated sexual assault on her. The FSL report and final opinion of the doctor reveals that there is no injuries found on the external genitalia and presence of spermatozoa was not found in the FSL report and also there is no seminal stains. The final opinion given on 15.11.2021 stating that there is no evidence of sexual act.
7. Learned counsel for the petitioner has contended that when there is no aggravated sexual assault, it falls only under Section 7 of the POCSO act. Looking to the facts and circumstances of the case, the medical opinion and the FSL report, I am of the view that, at this stage, it cannot be said that there is aggravated sexual assault on the victim in order to attract Section 6 of the POCSO act. Though the statement was recorded under Section 164 of Cr.P.C. there is no clarity in the statement regarding aggravated sexual assault. Investigation is completed and charge-sheet has been filed. The petitioner is in custody for more than six months and the age of the petitioner is more than 78 years. Such being the case, without expressing any opinion on the merits of the case, by imposing certain conditions, if bail is granted, no prejudice would be caused to the prosecution case. Hence, the following
ORDER
The trial Court is directed to release the petitioner- accused on bail in Crime No.114/2021 (Special Case No.369/2021 of Madhugiri Police Station, Tumakuru for the offences punishable under Sections 448, 376a
The main legal point established in the judgment is that the nature of the sexual assault and the evidence presented are crucial in determining the appropriate section of the POCSO act applicable to ....
Prima facie evidence of sexual assault and threat to victim's family outweighed inconsistencies in victim's statements at the bail stage.
The main legal point established in the judgment is the significance of medical evidence in cases involving allegations of sexual offenses, and the court's discretion in granting bail based on the co....
The clear provisions of the POCSO Act defining a minor as a girl below the age of 18 years and the importance of medical evidence in cases of sexual assault against minors.
The presumption of guilt under the POCSO Act applies, and the significant age difference between the accused and the victim renders the alleged crime particularly heinous.
Determining valid consent under the POCSO Act involves considering age and promises made, with such determinations being reserved for trial proceedings.
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