O R D E R

Heard Sri. Mahantesh H. Desai, learned counsel for the petitioner and Smt. Anitha M. Reddy, learned HCGP for respondent No.1-State.

Respondent No.2 is served and unrepresented.

2. This petition is filed by the accused under section 439 Cr.P.C. for grant of regular bail in Spl.C(POSCO).No.37/2023 on the file of learned Addl. District and Sessions Judge and FTC- I(POSCO), Kalaburagi for the offences punishable under sections 363, 376(3), 376(2) (N), 354(D), 343 and 506 IPC and sections 4, 6 and 12 of POCSO Act.

3. As per the contents of the charge sheet, the victim was aged about 16 years and residing with her mother. Prior to 17.05.2023, the accused being resident of Chunna Batti Area, Shahabad, used to follow the victim and talk to her. In the first week of October 2022, the complainant saw the accused speaking with the victim and the accused was advised accordingly. On 17.05.2023, at 7.15 p.m. as the victim was unwell, she had been to Government Hospital, Shahabad and while she was on her way near Hindi school, the accused came from behind in his motor cycle and saying her that he would show her Tirupathi temple, took her on his motorcycle to Railway station and from there they went to Tirupathi and stayed at Tirupathi for two days and on the premise that he would marry her, committed repeated sexual assault on the victim. Hence, this led to registration of FIR and investigation.

4. Learned counsel for the petitioner contended that the victim is not a minor and her date of birth is 21.06.2003 as per Aadhaar Car and Election card issued by the competent authority. Now the petitioner and the victim are married and they are living as husband and wife. It is contended that the prosecution examined PWs-1 to 6 including the victim. The petitioner is in judicial custody for more than one year and further incarceration in prison is not at all necessary. The petitioner is a permanent resident of address mentioned in the cause title and by imposing suitable conditions, the accused may be enlarged on bail.

5. Per-contra, learned HCGP appearing for respondent-

State opposed the bail petition and contended that the victim was a minor as on the date of the incident and consent of the victim was immaterial; the victim has supported in her 164 Cr.P.C. statement recorded before the learned Magistrate and in her evidence before the Special Court, she has clearly deposed about the sexual assault on her by the petitioner/accused. There is prima-facie material against the petitioner to show his involvement in the crime. Hence, he prayed to reject the petition.

6. On reading of the entire charge sheet, evidence of PWs-1 to 6 and the material on record, it transpires that on 17.05.2023, the accused took the victim who was a minor from Shahabad to Tirupathi temple and on the false promise that he would marry her, committed sexual assault on her. As per the statement of the victim recorded under section 164 Cr.P.C. and the deposition of the victim before the special Court, she has stated that soon after their marriage, the accused had aggravated sexual assault on her. The fact remains that the victim was a minor as on the date of the incident and therefore, consensus is immaterial.

7. It is well established law that while considering the bail petition, the Court has to consider the nature of the offence, circumstances in which the offence is committed, the status of the accused with reference to the victim and witnesses, likelihood of fleeing away from justice and repeating similar offences by the accused, tampering of witnesses, character and antecedents of the petitioner.

8. Learned counsel for the petitioner contended that as on 17.05.2023, the victim was a major and her date of birth is 21.06.2003 as per Aadhaar card and election ID card issued by the competent authority and therefore, it was consensual sex against the victim.

9. The law is well settled that while disposing the bail application, the court need not scan the prosecution papers and