Karnataka High Court
Harish Kumar vs State Of Karnataka on 18 November, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.6149/2020
BETWEEN:
Harish Kumar
S/o Naryana Swamy
Aged about 23 years,
R/at Kumbena Agrahara,
Kadugodi, Near Gangamma Temple,
Bengaluru - 560100.
...Petitioner
(By Sri.MohanKumar.D, Advocate)
AND:
State of Karnataka
By Kadugodi Police Station
Rep. by its Special Public Prosecutor,
High Court Complex,
Bengaluru-560 001.
...Respondent
(By Sri.R.D.Renukaradhya, HCGP)
This Criminal Petition is filed under Section 439 of
Cr.P.C., praying to enlarge the petitioner on bail in
Crime No.89/2019 of Kadugudi Police Station, Bengaluru
City for the offence punishable under Sections 366-A,
376-D read with Section 34 of IPC and Sections 4, 6 and
8 of POCSO Act.
-2-
This Criminal Petition coming on for Orders, this
day, the Court made the following:
ORDER
This petition has been filed by petitioner-accused No.1 under Section 439 of Cr.P.C., seeking to enlarge him on bail in Crime No.89/2019 of Kadugodi Police Station for the offence punishable under Sections 366(A), 376(D) read with Section 34 of IPC and also under Sections 4, 6 and 8 of POCSO Act, 2012.
2. I have heard the learned counsel Sri.Mohankumar.D for petitioner-accused No.1 and the learned High Court Government Pleader Sri.R.D.Renukaradhya for respondent- State.
3. The gist of the complaint is that a charge sheet came to be laid against accused Nos.1 to 3 making allegations that on 31.3.2019 all the accused persons, when the victim girl was proceeding in front of SLV Apartments, eloped the said victim girl and -3- committed rape on her. The victim girl was admittedly aged 16 years as on the date of the alleged incident. During the course of investigation, the police have recorded the statement of the victim girl. Of course there is some discrepancy in the statements wherein before the police under section 161 Cr.P.C she has stated that accused Nos. 1 and 2 have committed rape on her forcibly and accused No.3 was standing near and he alerted accused Nos. 1 and 2 at that time some lady was coming there. Thereafter all the accused persons ran away. Thereafter, the victim girl went to her house and informed the same to her mother. Thereafter, a complaint appears to have been filed.
4. It is the submission of the learned counsel for the petitioner-accused No.1 that earlier the petitioner-accused No.1 approached this Court in Crl.P.No.5573/2019 along with accused No.2. But accused No.2 has been granted bail and the bail -4- application of accused No.1 has been dismissed. Subsequently, the bail application of accused No.3 has also been allowed. It is his further submission that there is no prima-facie material as against the petitioner- accused No.1 to attract the provisions of Section 376 of IPC so also the provisions of POCSO Act. It is further submitted that though the victim in her statement recorded under Section 164 of Cr.P.C. has stated the overtacts by the petitioner-accused No.1, but, the medical evidence is not favourable to the case of the prosecution. It is his further submission that the medical records and the statement of the victim are contradictory to each other. On seeing the records it indicated that in the medical report the doctor has also narrated the history given by the victim girl in which the victim girl has implicated accused No.1 as person who inserted his penis into her vagina and committed rape on her and also implicated accused No.2. However, she only stated that accused No.3 has inserted his finger to -5- her private part. The doctor has also stated that there was no physical injury and therefore there was no evidence of complete penetration. The hymen is in tact. It is his further submission that already charge sheet has been filed and he is ready to abide by any of the conditions that may be imposed by this Court and ready to offer sureties. On these grounds, he prays to allow the petition.
5. Though the said application has been seriously contested by the learned High Court Government Pleader by contending that the statement of the victim has been recorded under Section 164 of Cr.P.C and serious allegations have been made as against the petitioner-accused No.1. But, on perusal of the medical records of the Vydehi Hospital, the victim got examined for sexual assault. At column No.6, it has been observed that Labia Majora: Intact, Labia Minora:
No injuries, Fourchette and Introitus: No injuries, -6- Hymen: No injuries, External Urethral Meatus: Mucosal abrasion noted at fourchette, No actual bleeding.
6. Though it is alleged by the prosecution that it is accused No.1 who inserted his penis into the vagina and committed rape but there is no injury to the hymen, Labia Majora, Labia Minora and Fourchette and Introitus. But, as per the case of the prosecution, it is accused No.3 who inserted his finger to her private part because of that some abrasion which has been noted may be there at urethral meatus. When the statement of the victim is contradictory to the medical statement and if the victim has been assaulted by three persons, then under such circumstances definitely she could have suffered with injuries on Labia Majora, Labia Minora and even hymen could have been ruptured and injuries might have been caused.
7. Taking into consideration the fact that already accused No.3 has been released on bail and the -7- statement of the victim is contradictory to the medical records, under such circumstances, I am of the considered opinion that if by imposing some stringent conditions, if petitioner-accused No.1 is ordered to be enlarged on bail, it is going to meet the ends of justice.
8. In that light, the petition is allowed. Petitioner-accused No.1 is ordered to be released on bail in Crime No.89/2019 of Kadugodi Police Station for the offence punishable under Section 366(A), 376(D) read with Section 34 of IPC and also under Sections 4, 6 and 8 of POCSO Act, 2012 with following conditions:-
i) Petitioner-accused No.1 shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two lakhs only) with two sureties for the likesum to the satisfaction of the trial Court.
ii) He shall be regular in attending the trial Court proceedings unless he is exempted for good reasons.
iii) He shall not leave the jurisdiction of the Court without prior permission.-8-
iv) He shall not threaten or tamper the prosecution evidence directly or indirectly.
v) He shall not indulge in similar type of criminal activities.
vi) He shall mark his attendance once in 15 days between 10 a.m. and 5 p.m. till the trial is concluded.
vii) If any one of the conditions is violated, the bail is liable to be cancelled.
Sd/-
JUDGE NS