Karnataka High Court
Sri. Ashok vs State Of Karnataka on 16 February, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.9991/2017
BETWEEN:
Sri Ashok
S/o Sri Radhakrishna
Aged about 25 years
R/at C/o Venkatesh's House
Gandhipura, Whitefield
Bengaluru-560 066. ... PETITIONER
(By Sri P V Jainapur, Adv.)
AND:
State of Karnataka by S.H.O.,
Bellandur Police Station
Bangalore City
Represented by the
State Public Prosecutor
High Court
Bangalore-560 001. ...RESPONDENT
(By Sri Chetan Desai, HCGP)
This Criminal Petition is filed under Section 439 of the
Cr.P.C. praying to enlarge the petitioner on bail in Cr.
No.10/2017 (Spl.C.C.No.576/2017) of Bellanduru P.S.,
Bengaluru City, for the offences P/U/Ss 363, 366, 345, 376
and 506 of IPC and Sections 4 and 6 of Protection of
Children from Sexual Offences Act.
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This Criminal Petition coming on for Orders this day,
the Court made the following:
ORDER
This petition is filed by the petitioner/accused under Section 439 of Cr.P.C. seeking his release on bail for the offences punishable under Sections 363, 366, 345, 376 and 506 of IPC and Sections 4 and 6 of the POCSO Act, 2012, registered in respondent - police station Crime No.10/2017. On the basis of the complaint, initially, FIR was registered for the alleged offence under Section 363 of IPC and subsequently, after recording the statement of the victim girl, other offences came to be inserted in the case.
2. Heard the arguments of the learned counsel appearing for the petitioner/accused and also the learned High Court Government Pleader appearing for the respondent-State.
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3. Learned counsel for the petitioner during the course of his arguments submitted that the statement of the victim girl will not make out a case to attract the ingredients of Section 376 of IPC. Now the trial of the case has begun and some of the witnesses have been already examined before the Special Court. Even according to the deposition of the witnesses who have been already examined, there is no case made out by the prosecution against the present petitioner. Since from the date of arrest petitioner is in custody. Hence, by imposing reasonable conditions petitioner may be enlarged on bail.
4. Per contra, learned High Court Government Pleader opposed the petition contending that the victirm girl was of the age of 15 years as on the date of incident and she was a minor. In her statement recorded under Section 164 of Cr.P.C. before the JMFC Court, she has 4 clearly stated that there was a sexual intercourse on her by the petitioner. He also drew the attention of the Court to the medical records wherein the Doctor who conducted the examination of the victim girl has mentioned that hymen was not intact. Hence, submitted that these materials prima facie show the involvement of the petitioner in committing the alleged offences. Hence, petitioner is not entitled to be granted with bail.
5. I have perused the grounds urged in the bail petition, FIR, complaint and entire charge sheet material produced by the learned counsel for the petitioner along with the petition.
6. In the statement of the victim girl recorded under Section 164 of Cr.P.C. she has stated her age as 15 years. Even according to the statement of other 5 witnesses, victim was 15 years of age. The medical record also shows that her hymen was not intact. However, the learned counsel for the petitioner during the course of his arguments referring to the decision of the Hon'ble Supreme Court in the case of S Varadarajan Vs. State of Madras reported in AIR 1965 SC 942 wherein the girl was below the age of 18 years, the Hon'ble Supreme Court has held that there is no kidnap of the victim girl, the learned counsel submitted that though in the case on hand the girl is stated to be 15 years of age, but she was having mental maturity. Therefore, it is not a case of kidnapping and committing rape on the victim girl.
7. The submission of the learned counsel for the petitioner cannot be accepted, since, in the present case, the offence under the provisions of POCSO Act is also mentioned and under the said Act, the definition of 6 the word child under Section 2 of the POCSO Act means biological or physical attainment of 18 years of age. The materials prima facie show that though the victim girl was aged 15 years, having sexual intercourse with such girl, even with consent, is not permissible under the law. Therefore, it is not a fit case to exercise the discretion in favour of the petitioner.
Accordingly, petition is hereby rejected.
Sd/-
JUDGE bkp