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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 12^TH DAY OF JANUARY, 2022

BEFORE

THE HON'BLE MR. JUSTICE H.P. SANDESH

CRIMINAL PETITION NO.10089/2021

BETWEEN:

SHRI MOHIT KALWANI,

S/O SHRI SEVAKRAM,

R/AT NO. B/51, KEDAR NAGAR,

NEAR GURUVAR GARDEN HALL,

SHAHGANJ, AGRA,

UTTAR PRADESH – 282 010.

...PETITIONER

(BY SRI MURTHY NAYAK, ADVOCATE FOR

SRI PARASHURAM A.L., ADVOCATE)

AND:

1.

THE STATE OF KARNATAKA,

BY SANJAYNAGAR POLICE STATION,

REP BY STATE PUBLIC PROSECUTOR,

HIGH COURT COMPLEX,

BENGALURU – 560 001.

2.

SRI DILIP KUMAR,

S/O SRI ARJUNLAL,

AGED ABOUT 43 YEARS,

R/AT NO.11, RMV 2^ND STAGE,

2^ND MAIN, SUBBANNA COLONY,

LOTTEGOLLAHALLI, SANJAYNAGAR,

BENGALURU – 560 094.

...RESPONDENTS

(BY SRI VINAYAKA V.S., HCGP FOR R-1,

SRI G.S. BHAT, ADVOCATE FOR R-2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF

CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN

CR.NO.82/2021 (SPL.C.C.NO.739/2021 PENDING ON THE FILE OF

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LIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU)

REGISTERED BY SANJAY NAGAR POLICE STATION, BENGALURU

FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 363, 376(3) OF

IPC AND SECTION 4(3) AND 6 OF POCSO ACT.

THIS CRIMINAL PETITION COMING ON FOR ORDERS

THROUGH VIDEO CONFERENCE THIS DAY, THE COURT MADE THE

FOLLOWING:

O R D E R

This petition is filed under Section 439 of Cr.P.C. seeking

regular

bail

of

the

petitioner

in

Crime

No.82/2021

of

Sanjaynagar Police Station, Bengaluru for the offence punishable

under Sections 363 and 376(3) of IPC and Section 4(3) and 6 of

the Protection of Children from Sexual Offences Act (‘POCSO Act’

for short).

2.

Heard the learned counsel for the petitioner, the

learned

High

Court

Government

Pleader

appearing

for

respondent No.1-State and the learned counsel for respondent

No.2.

3.

The factual matrix of the case is that the father of

the victim girl had lodged the missing complaint of his daughter

and based on the complaint, the offence under Section 363 of

IPC is invoked and investigation was conducted and invoked the

offence under Section 376(3) of IPC and Sections 4(3) and 6 of

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the POCSO Act on the ground that the victim girl was aged about

14 years at the time of committing the offence and filed the

charge-sheet.

4.

The learned counsel for the petitioner would

vehemently contend that the police have falsely implicated this

petitioner and the petitioner is young boy aged about 19 years.

The medical records of the victim girl discloses that she is aged

about 18-20 years and the question of invoking the provisions of

POCSO Act does not arise. The learned counsel submits that no

material is placed before the Court that she was subjected to

sexual act when she was a minor and there are contradictory

statement in the police statement and also in the 164 statement

and from the victim’s sworn admission before the doctor

conducting the medical examination it is established that the

petitioner and the victim had no sexual intercourse. When such

being the factual aspects of the case, the petitioner is entitled for

bail and the petitioner is in custody from 02.04.2021.

5.

Per contra, the learned High Court Government

Pleader appearing for the respondent-State would submit that

the date of birth of the victim girl is 03.04.2008 and she was

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aged about 14 years at the time of subjecting her for sexual act.

Apart from that, the Investigating Officer also collected the lodge

register in which lodge the petitioner had kept her and subjected

for sexual act. The medical evidence also discloses that hymen

had a fresh tear and the doctor opinion is clear that she was

subjected to sexual act. The learned counsel brought to the

notice FSL report pertaining to the clothes of the accused also

found positive.

6.

Having heard the learned counsel for the petitioner

and the learned High Court Government Pleader appearing for

respondent No.1-State, no doubt missing comp