Discrepancies in victim's statements, absence of supporting evidence, and delay in filing the complaint can be considered in granting bail.

JUDGMENT/ORDER

1. This petition is filed under Section 438 of Cr.P.C. praying to enlarge the petitioner/accused on bail, in the event of his arrest in respect of Crime No. 139/2021 registered by Vitla Police Station, Dakshina Kannada, for the offence punishable under Sections 376(2)(f) and 376(2)(i) of IPC and Sections 6(1) and 5(n) 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 discloses that a case has been registered based on the complaint of the victim at Kasargod in Crime No. 55/2021 for the offence punishable under Sections 376(2)(f) and 376(2)(i) of IPC and Sections 6(1) and 5(n) of the POCSO Act and the petitioner was enlarged on bail at Kasargod Court and thereafter, for want of registration, the matter was transferred and the same was renumbered as Crime No. 139/2021 of Vitla Police, Dakshina Kannada. The specific allegation against the petitioner is that, he being the cousin of the victim, subjected her for sexual act in the month of March, 2020, when the victim went to attend the marriage in the night by providing intoxicated juice to her and the complaint was not given. Thereafter, after some days, the said fact was disclosed to the brother of the victim and also to her mother and ultimately, the complaint was given in the month of January, 2021, almost after lapse of ten months and thereafter, Vitla police investigated the matter and filed the charge-sheet and after transfer of the case, the petitioner has approached the Sessions Court and the Sessions Court has rejected the bail petition. Hence, the present petition is filed before this Court.

4. Learned counsel for the petitioner would submit that the alleged incident according to the complainant has taken place on 29.03.2020, but complaint was given after lapse of almost 10 months and though an allegation is made in the complaint that she was subjected to sexual act by this petitioner, but in 164 statement of the victim, she has not stated anything about subjecting her for sexual act and she only claims that she was in Child Care at Mangaluru, Kadri and they have told her to give complaint. Hence, she has given the complaint but, she claims in 164 statement that no one has given any trouble. Hence, it is a fit case to exercise the powers under Section 438 of Cr.P.C in favour of the petitioner.

5. Per contra, learned High Court Government Pleader for the respondent-State would submit that, while examining the victim, she has narrated the story as to how the incident has taken place i.e., subjecting her for sexual act in the month of March, 2020 and the same was also disclosed to her brother in the month of September,2020 and to her mother in the month of December, 2020 and she has joined Inchara Child Care. He also would submit that hymen was absent in terms of medical records and further submits that in 164 statement, she has not alleged anything about the said act and the said statement was recorded on 16.11.2021.

6. Having heard the respective counsel and also on perusal of the material available on record, admittedly, the petitioner was granted bail at Kasargod when the case was registered at the first instance at Kasargod and subsequently, for want of jurisdiction, FIR was transferred and fresh case was registered in Crime No. 139/2021 of Vitla police. The victim was also subjected to medical examination wherein, she has narrated with regard to subjecting her for sexual act, that too, by this petitioner, who happens to be a cousin of the victim. Having taken note of the history given in the medical records, incident has taken place according to the prosecutrix in the month of March, 2020 and thereafter, the same was disclosed in the month of September and December, 2020 to her brother and mother respectively and there is a delay of 10 months in lodging the complaint. It is also important to note that during the course of investigation, the victi