Regular bail sought by two accused in a POCSO gang rape case involving a 13-year-old victim. The court found prima facie material against them, including corroborative medical evidence and testimony of the victim and complainant, noted threats to witnesses, and rejected the bail petition.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL PETITION NO. 725 OF 2024
BETWEEN:
…PETITIONERS
Digitally signed by SOWMYA D
Location: High Court of Karnataka
(BY SRI. K.V. SATEESHCHANDRA, ADVOCATE)
AND:
SHIVAMOGGA TALUK, SHIVAMOGGA-577 201.
…RESPONDENTS
(BY SRI. B. LAKSHMANA, HCGP)
THIS CRL.P IS FILED U/S 439 CR.PC PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.205/2023 OF KUMSI P.S SHIVAMOGGA FOR THE OFFENCE P/U/Ss. 376(2)(f), 376(3), 376DA, 504 R/W SEC.34 OF IPC SEC.5(g), 6 OF POCSO ACT ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE FTSC II (POCSO) AT SHIVAMOGGA IN SPL.C.NO.401/2023.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners/Accused Nos.1 & 2 have filed this petition under Section 439 of Cr.P.C. for enlarging them on bail in Special Case No.401/2023 arising out of Crime No.205/2023 of Kumsi Police Station, Shivamogga District, for the offences punishable under Section 376(2)(f), 376(3), 376(D)(A), 506 and 504 r/w 34 of IPC and Sections 4, 5(G) and 6 of Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’), pending on the file of the Additional District and Sessions Judge/FTSC-II, Shivamogga.
as under:-
NC: 2024:KHC:12795 CRL.P No. 725 of 2024
brought to the notice of CW.4 and on his assurance, a complaint came to be lodged on 12.09.2023. On the basis of the complaint, FIR came to be registered against petitioners and the petitioners were arrested and thereafter remanded to judicial custody. Both the petitioners were subjected to medical examination including the victim girl and thereafter, the Investigating Officer after completing investigation, submitted the charge sheet.
Counsel for the petitioners and the learned HCGP for the respondent-State. Perused the records.
present, though petitioners are in the custody, they are threatening her and her children and they are waiting to get themselves released on bail and the moment they get bail, they will not spare the witnesses and hence, she expressed her apprehension in this regard.
order of the learned Sessions Judge/Special Judge and further submits that the trial is under progress and both
the victim as well as the complainant have already deposed in support of the claim of the prosecution. Learned HCGP has also invited the attention of the Court to the medical evidence, which discloses that the victim is aged 13 years and there is evidence of she undergoing sexual intercourse. He would further contend that, considering the progress in the trial and also considering the subsequent event regarding threatening the prosecution witnesses, this is not a fit case, wherein the discretion can be exercised in favour of petitioners.
attention of the Court to the provisional medical opinion, which discloses that there is no signs of recent forceful sexual activity of penetration. However, the final opinion clearly discloses that there are signs suggestive of vaginal intercourse with the victim. No doubt, there are no signs of injuries on the body of the victim. But, however, the medical record discloses that nail scratch marks were found on both side of the neck of victim and they were more than one week old. The alleged offence is said to have taken place on 02.09.2023, but the complaint was lodged on 12.09.2023 and the victim was subjected to medical examination on 14.09.2023. Hence, question of tracing of seminal stains and other things is not possible. There is medical evidence regarding nail scratch marks found on the neck of the victim girl. This medical evidence is in corroboration with the statement of the victim recorded under Section 164 of Cr.P.C.
support the case of prosecution. But, the DNA profiling does support the case of the prosecution to the major extent regarding Petitioner No.2 and it is not supportive of Petitioner No.1. The allegation is that petitioner No.1 first raped the victim and later on the 2nd petitioner has raped the victim. Hence, the possibility of destruction of material evidence pertaining to the 1st petitioner cannot be ruled-out. Apart from this, all these aspects are required to be tested during the course of trial. The allegations are very serious in nature as the victim is hardly aged about 13 years and she was raped by two persons, which amounts to a gang rape. Though it is submitted that, at the instigation of CW.4, the Complaint is filed, but, no such evidence is forthcoming as to why the complainant at the risk of the future life of her daughter, should lodge a false complaint against the petitioners. Both the main witnesses viz., victim and complainant have supported the case of prosecution and now the complainant apprehend a serious threat to victim’s life though she is already examined before the trial Court.
There is prima facie material evidence as against the petitioners and the offence is inhuman and it cannot be taken in a light way. Further, when the trial is in progress, it is not proper on the part of this Court to express any opinion regarding the quality of evidence already recorded, since it is likely to prejudice the trial and the trial Court can take its own stand after completion of the evidence and on appreciating the evidence, it can finally dispose of the case.
the petition being devoid of any merits, does not survive
for consideration and accordingly, it stands rejected .
Sd/JUDGE
KGR*
List No.: 1 Sl No.: 32
1 issue framed by the court
Whether the accused should be enlarged on bail in a POCSO gang rape case where the victim and complainant have already testified and threats to witnesses are alleged.
6 provisions across 3 enactments
Harish Naika @ Harisha
Umesh Naika
State by Kumsi Police Station, Shivamogga
Smt. Shoba @ Alamellamma
Rajendra Badamikar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
