Karnataka High Court
Adayya S/O Amarayya Gadad vs The State Through on 25 January, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.201378/2016
Between:
Adayya
S/o Amarayya Gadad
Aged about 40 years
Occ: Pan Shop
R/o Halapur Village, Tq. Manvi
Dist. Raichur
... Petitioner
(By Sri R.S.Kadganchi, Advocate)
And:
The State through
Kowthal Police Station
Raichur District
Represented by SHO
... Respondent
(By Sri Prabhugouda S. Patil, HCGP)
This Criminal Petition is filed under Section 439 of
Cr.P.C., praying to release the above said accused/petitioner
on bail in Crime No. 22/2016 of Kowthal Police Station Spl.
Case (POCSO) 52/2016 pending before the Hon'ble I Addl.
Sessions Court, Raichur, which is registered for the offences
punishable under Section 376 of IPC and 4 of POCSO Act.
2
This petition is 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 regular bail in Crime No.22/2016 (Spl.Case (POCSO) No.52/2016) of Kowthal Police Station, Raichur, registered for the offences punishable under Sections 376 of IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012.
2. Brief facts leading to filing of the complaint are that, on 05.03.2016 at about 4:00 p.m. the complainant along with the victim and other family members were sitting in the house and at that time brother-in-law asked the victim to bring Vimal Suprai packet from the shop of the petitioner. It is further alleged in the complaint that when the victim went to the shop of the petitioner, she did not return even after 5-10 minutes. Immediately the complainant went in 3 search of the victim and there he found that the victim was seen on the bed of the accused and accused was lying on her daughter. By seeing the complainant he ran away from that place, the complaint being shocked by seeing the said incident and after examining the victim and after discussing with the mother of the victim and other relatives she went to the police station and filed the complaint.
3. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for respondent-State.
4. The main grounds urged by the learned counsel for the petitioner are that petitioner is innocent and has not committed any offence alleged against him. He has also contended that the medical report of the victim indicates that there is no sexual assault committed by the accused-petitioner. He has further contended by referring to the FSL report that there is no 4 seminal stains present on any of the items, which have been sent for the purpose of chemical examination. He has further contended that the statement of the victim has not been recorded as contemplated under the POCSO Act. He has further contended that accused- petitioner is suffering with physical disability and very recently he has been also attacked with paralysis and now he has been admitted in the hospital as per order of the Court. As such, he is also entitled to be released on bail on the ground of ill health. On these grounds, he prays for allowing the petition.
5. On the contrary, learned High Court Government Pleader appearing for the respondent-State vehemently contended that accused-petitioner has caused sexual assault on a minor girl of four years and there are no goods grounds to release the accused- petitioner on bail. He has further contended that even the doctor who has examined the victim has specifically 5 mentioned in the certificate that labia swelling and difference in nature, as such, cause of sexual assault committed by the alleged petitioner the injury has taken place. He has further contended that the petitioner is suffering with paralysis since his childhood and best treatment can be given in best hospital by the Government. On these grounds, he prays for dismissal of the petition.
6. I have gone through the copy of the FIR, complaint and other material produced along with the petition. The said material indicates that on 05.03.2016 at about 4:00 p.m. when the victim girl went to the pan shop of the accused-petitioner, at that time accused- petitioner has sexually assaulted her by taking her to bed and that aspect is also corroborated with the medical certificate of the examination of the victim, therein it has been mentioned that labia swelling and difference in nature. Even though the other private 6 organs of the victim is intact but that itself is sufficient to constitute the offence under the POCSO Act. Apart from this even though the learned counsel for the accused has contended that accused-petitioner is physically disabled and he is suffering from paralysis but the said fact is thereto him from his childhood and there are no special circumstances to show any concession only because of earlier i.e. disability which he is having. But so far as the contention of the accused-petitioner is suffering with paralysis and now he has been admitted in the NIMHANS hospital, it is noticed by this Court that the NIMHANS is one of the best hospital in the country which give a better treatment especially to the paralysis and others like concern disease. The only anxiety shown by the learned counsel for the petitioner is that if he is with his family members that he may feel it homely and for early recover may happen that will not be a good ground to release the accused-petitioner on bail that too when the 7 accused-petitioner has committed a sexual assault on a minor girl who is aged about four years. Even though the statement of witnesses is not recorded in accordance with the provisions of POCSO Act that is only an additional provision they are to be considered at the time of trial. It is brought to my notice at the time of argument that the accused-petitioner is married person and has got wife and children. If such person involves in such heinous offence like sexual assault on a minor girl of four years, under such circumstances, no leniency can be shown and is not entitled to be enlarged on bail. Keeping in view the above said facts and circumstances of the case, the petition stands dismissed.
Sd/-
JUDGE sdu Ct: MHS