Bail granted where medical evidence contradicts allegations of sexual assault.

ORDER

This bail application is filed under section 483 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (for short ‘ BNSS ’).

2. Petitioner is the sole accused in Crime No.575 of 2024 of Fort Kochi Police Station, Ernakulam, registered for the offences punishable under Section 354 (A)(i), 376(2)(f), 376(2)(n) & 449 of the Indian Penal Code , 1860 as well as Sections 63 (a), 64(2)(f), 64(2)(m) & 65(1) of the Bharatiya Nyaya Sanhita , 2023 and Sections 3 (a), 4(2), 5p, 6, 7, 8, 91, 9m, 9n, 9p, 10 & 51 of the Protection of Children from Sexual Offences Act , 2012.

3. According to the prosecution, in the year 2019 when the victim was 11 years of age, the accused – who is her relative, sexually harassed her at her residence and in 2020, he caught hold of her breasts and genital area. Later, on 15.06.2024, the accused committed penetrative sexual assault on the victim and thereby committed the offences alleged. Petitioner was arrested on 30.09.2024 and he has been in custody since then.

4. The learned Counsel for the petitioner submitted that the entire prosecution allegations are false and as there are property disputes between the family of the petitioner and the victim the baseless allegations have been raised. It was also submitted that it came to the petitioner’s information that the medical certificate is inconsistent with the allegation of penetrative sexual assault clearly indicating the falsity of the case and hence petitioner ought to be released on bail.

5. Learned Public Prosecutor opposed the bail application and submitted that the allegations are serious and the continued detention of the petitioner is essential.

6. When the medical certificate was called for by this Court, it was noticed that the Doctor had opined in the certificate that the victim’s genital organs [labia majora and labia minora] were normal and also that the hymen was intact. It was further observed in conclusion that “History as may be alleged, but the finding of the examination are inconsistent of history of said sexual assault”. On noticing this medical report, this Court directed the statement of the Doctor as given to the Investigating OfÏcer to be produced. In the statement, the Doctor reiterates her findings and stated that the labia majora and labia minora of the victim appear normal and the hymen was intact.

7. Since the medical evidence of the victim does not reflect any penetrative sexual assault as alleged and since in the statement of the victim it is stated that she was physically assaulted and the accused committed penetrative sexual assault through her genitals, which is not consistent with the medical evidence, I am of the view that the continued detention of the petitioner is not necessary. The final report has also been filed.

Therefore, the petitioner ought to be released on bail.

In the result, this application is allowed on the following conditions:-

(a) Petitioner shall be released on bail on him executing a bond for Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction.

(b) Petitioner shall co-operate with the trial of the case.

(c) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he attempt to tamper with the evidence.

(d) Petitioner shall not commit any similar offences while he is on bail.

(e) Petitioner shall not leave the country without the permission of the jurisdictional Court.

In case of violation of any of the above conditions or if any modification or deletion of the conditions are required, the jurisdictional Court shall be empowered to consider such applications, if any, and pass appropriate orders in accordance with law, notwithstanding