Prima facie medical evidence is crucial in cases of sexual assault to establish the prosecution's case.

JUDGMENT

H.P. Sandesh, J. - Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent/State.

2. The factual matrix of the case of the prosecution is that the victim girl who is aged about 14 years was subjected to sexual assault by the accused/petitioner persuading her that he would marry her and he took her in a motorcycle and thereafter took her to Bengaluru from Chitradurga in a bus and they spent time in Majestic at Bengaluru and on 09.11.2021 he took her to Narasapura Industrial Area and hired a house belonging to Smt.Lakshmanna W/o Narayanappa for rent and kept her in the said house and subjected her to sexual act against her wish and hence, the police after investigation have filed a charge-sheet for the offences punishable under Sections 366(a), 376 IPC and Section 4 of the POCSO Act.

3. Learned counsel appearing for the petitioner contends that though an allegation subjecting the victim to sexual act is made but there are contradictions in the complaint as well as in the charge-sheet. In the charge-sheet the allegation is made that the accused/petitioner took her to Bengaluru in a bus and no allegation of subjecting her to sexual act at Bengaluru is made but in the complaint an allegation is made that she was subjected to sexual act in a lodge at Majestic in Bengaluru. The victim in her 164 statement gives different version that she was subjected to sexual act at Narasapura and also at Nalluru. Learned counsel would also submit that the parents of the victim or the victim have not consented for the medical examination of the victim to show that she was subjected to sexual assault and the same shows that a false allegation has been made against the petitioner/accused.

4. Per contra, learned High Court Government Pleader would submit that the victim is aged 14 years and though there are discrepancies in the complaint given and in the charge-sheet, but the victim has categorically stated in her 164 statement that she was subjected to sexual act. Hence, he submits that there is a prima facie case made out against the petitioner/accused.

5. Having heard the learned counsel for the petitioner/accused and the learned High Court Government Pleader, it is seen that the law is set in motion by giving a complaint on 09.11.2021 wherein an allegation is made that on 08.11.2021 the accused took the victim to Bengaluru and subjected her to sexual assault at a lodge in Majestic. But, during the course of investigation, the statements given are different and while filing the charge-sheet an allegation is made that she was subjected to sexual assault at Narasapura in a rented house. The material also discloses that both the victim as well as her parents did not consent for subjecting the victim to medical examination in order to prove that she was subjected to sexual assault. Hence, the offence punishable under Section 376 IPC as well as under Section 4 of the POCSO Act cannot be made out unless the victim is subjected to medical examination to prove that the accused had subjected her to sexual act. Indeed the victim in her 164 statement states that she was subjected to sexual act, but versions are different and while giving the complaint an allegation is made that she was subjected to sexual act in a lodge at Majestic in Bengaluru but in the investigation it is emerged that she was subjected to sexual act at Narasapura and in 164 statement she has not stated anything about she being subjected to sexual act in a lodge at Majestic in Bengaluru. Hence, taking into consideration that there is no prima facie medical evidence to prove the act of sexual assault, this Court is of the opinion that no prima facie case is made out against the accused/petitioner. The investigation has already been completed and the charge-sheet has already been filed and there is no need to keep the accused/petitioner for further custodial trial. Having considered the material on record, this is a fit case