Sri. Krishnegowda. S Vs State of Karnataka

THIS CRL.P IS FILED U/S 439 OF CR.PC (FILED U/S 483 BNSS) PRAYING TO ENLARGE THE PETITIONER ON BAIL FOR THE ALLEGED OFFENCES PUNISHABLE UNDER SECTION 376(2)(n), 506 OF IPC AND SECTION 6 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012, IN SPL.C.C.NO.1998/2024 ON THE FILE OF THE ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, FTSC-V, BENGALURU, (ARISING OUT OF CRIME NO.429/2024 OF CHANDRA LAYOUT POLICE STATION, BENGALURU).

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ

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ORAL ORDER

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Petitioner is the sole accused in Crime No.429/2024

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of Chandra Layout Police Station, initially registered for the offence punishable under Sections 376 and 420 of IPC.

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Charge sheet is filed for offences punishable under Section 376(2)(n), 506 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO' Act).

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Heard the learned counsel for petitioner, learned Additional SPP for the State and learned counsel appearing for respondent No.2-defacto complainant.

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It is the case of prosecution that about four years prior, victim girl came in contact with the accused while she was residing in Kirugavalu Town, Mandya District. Accused assured the victim and her mother that he will help them in their difficulties and provided his phone number to them. Later, victim and her mother sought help from the accused saying that they are finding difficult to lead life in their village. Accused asked them to come to Nagarbhavi in Bengaluru and provided a rented house to them in Nagarbhavi, Chandra layout, Bengaluru and he used to visit their house. A year later, complainant and her mother vacated the said house and from 2020, they started to reside at house No.49 (Old No.105) belonging to CW.10 situated behind Madduramma temple at Nagarbhavi Circle.

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It is alleged that accused used to visit the house of the victim and knowing very well that she is a minor, used to take her to the parks, touch her body inappropriately. Further, he enticed her by giving food,

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mobile phone, laptop and with an assurance of marriage, committed penetrative sexual assault on her.

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It is the further case of the prosecution that the victim and her mother vacated the house at Nagarbhavi Circle and from 12.08.2023 started residing at house No.17, 1^st ‘A’ Main, Maruthi Nagar, Nagarbhavi. Accused used to visit the said house when the victim was alone and with a promise of marriage and threatening her, committed penetrative sexual assault and later refused to marry and cheated her etc.

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Learned counsel for petitioner has contended

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that as per complaint, about two years prior, accused is alleged to have committed sexual assault on the victim. Admittedly, victim was aged 21 years at the time of lodging the complaint and therefore, she was not a minor as on the date of commission of offence. He contended that even accepting the entire allegations, it cannot be said that the ingredients of the offence alleged against the petitioner are made out. He would further contend that

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victim and her mother issued threat and started black mailing the petitioner and therefore, he gave a complaint to the Assistant Commissioner of Police on 08.08.2024 and subsequent to that, victim has come up with a concocted story making false allegations.

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Per contra, learned Additional SPP and learned counsel appearing for respondent No.2 vehemently contended that this is a case wherein, the accused has exploited a minor girl who sought help from him due to poverty. Accused has induced her to have sexual intercourse with him with a promise of marriage and later cheated her. As per SSLC marks Card, date of birth of the victim is 01.03.2004 and therefore, the victim was a minor. Hence, consent if any given by her is not a consent in the eyes of law.

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The learned Additional SPP contended that as per Medical Report, sexual violence is not ruled out, which supports the statement of the victim, hence, there is a prima facie case against the petitioner. She has further

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contended that the offence committed is heinous in nature and if the petitioner is enlarged on bail he may threaten the victim and other prosecution witnesses. Accordingly, sought to dismiss the petition.

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Learned counsel for respondent No.2 has relied on a decision of this Court in Hrushikesh Sahoo v. State of Karnataka reported in 2018 (1) AKR 158 and contended that when the medical report revealing that the hymen is torn and statements of mother and the victim corroborates the allegations made in the complaint, then bail cannot be granted.

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The incident is alleged to have taken place between 12.08.2022 and 31.05.2024. Complaint is lodged on 12.08.2024. At the time of lodging the complaint, victim is aged 21 years. According to the complaint, though the victim got acquainted with the accused about four years prior, allegation of committing sexual assault is two years prior to lodging the complaint. In the further statement, victim has stated that she was sexually

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assaulted by the accused since 2020. In the earliest version, the sexual assault was allegedly committed from 12.08.2022. According to prosecution date of birth of the victim is 01.03.2004. If the complaint version is accepted, at this stage, victim cannot be said to be a minor at the time of commission of offence. The allegations that the accused committed penetrative sexual assault with a false promise of marriage etc., has to be proved during trial.

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The learned counsel for petitioner has drawn the attention of the Court to the panchanama regarding seizure of mobile phone, as per which victim used to make video calls to the accused and send her photos to him. Hence, prima facie, the allegations that the victim was subjected to forcible sexual intercourse etc., appears to be doubtful. It is a matter which has to be established in a full-fledged trial. It is also pertinent to see that in the FIR, Provisions under the POCSO Act were not invoked, but they were invoked while filing charge sheet.

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I have also perused the copy of the complaint dated 08.08.2024 given by the petitioner to the Assistant Commissioner of Police, alleging threat and extortion against the victim and her mother. Subsequent to filing of the said complaint, the instant case is registered against the petitioner on 12.08.2024.

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In Mahesh Damu Khare V. State of

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Maharashtra reported in 2024 SCC online SC 3471 , it is held that continuation of physical relationship without demurral or remonstration by the female partner, in effect takes out the sting of criminal culpability and neutralises it.

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Investigation is now completed and charge sheet is filed. Petitioner is in judicial custody from 13.08.2024. Considering the entire facts and circumstances of the case, relief sought by the petitioner can be granted by imposing conditions. Accordingly, the following:

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ORDER

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Petition is allowed.

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Petitioners/accused in Crime No.429/2024 of Chandra Layout Police Station, pending in

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Spl.C.C.No.1998/2024 on the file of the Additional City Civil and Sessions Judge, FTSC-V Bengaluru, shall be enlarged on bail, subject to following conditions:

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He shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two sureties for the likesum to the satisfaction of the jurisdictional Court.

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