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.

JUDGMENT

1. This petition is filed under Sec. 439 of Cr.P.C. seeking regular bail of the petitioner/accused in Crime No.192/2021 of Konanakunte Police Station, Bengaluru City, for the offences punishable under Ss. 5(m) and 6 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO' Act for short) and under Sec. 376 of IPC.

2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent No.1/State.

3. The factual matrix of the case is that, this petitioner was staying in the house of the victim girl, who is aged about 10 years and in the midnight, he subjected her for sexual act and when she screamed at the spot, the sister of the victim girl woke up and scolded this petitioner. The victim girl was subjected to medical examination on the very next day and statement under Sec. 164 of Cr.P.C. was also recorded by the Magistrate. The sister of the victim girl has also given the statement before the Magistrate under Sec. 164(5) of Cr.P.C.

4. The learned counsel for the petitioner would submit that, though the age of the victim girl is mentioned as 10 years, the Doctor has opined that she is aged about 16 years. The learned counsel would also submit that the medical report is clear that there is no injury and the petitioner is in custody from the last four months.

5. Per contra, the learned High Court Government Pleader appearing for the respondent No.1/State would submit that this petitioner being a relative of the victim girl aged about 10 years subjected the victim girl to sexual act and medical evidence also discloses that hymen is not intact. He would submit that the report of the doctor is very clear that she was subjected to sexual Act. Hence, the petitioner is not entitled for bail.

6. Having heard the respective counsel and also on perusal of the records, no doubt, the victim is aged about 10 years and the doctor has opined that she is aged about 16 years, the definition of Sec. 2(d) of the POCSO Act is very clear that the girl below the age of 18 years is a minor. Apart from that, medical record also discloses that she was subjected to sexual act. No doubt, there is no injury, however, the doctor report is very clear that hymen is not intact and she was subjected to sexual act. When such being the facts and circumstances of the case and when the medical evidence also goes against the petitioner and the victim girl is aged below 18 years, the Court has to look into the very object of bringing the enactment of POCSO Act. Even assuming for a moment that the victim girl is aged about 16 years as contended by the learned counsel for the petitioner, when the medical evidence goes against the petitioner, it is not a fit case to exercise the discretion under Sec. 439 of Cr.P.C. The fact that the petitioner is in judicial custody from the last four months is not a ground to enlarge the petitioner on bail.

7. In view of the discussions made above, I pass the following:

ORDER The Criminal Petition is rejected.