Abishek vs The State of Karnataka

Budihal R.B, J.—This is the petition filed by the petitioner/accused No. 1 u/s 439 of Cr.P.C. seeking his release on bail for the offences punishable under Sections 376(D) and 376(2) of IPC, registered in respondent-police station Crime No. 227/2014.

Heard the arguments of the learned counsel appearing for the petitioner/accused No. 1 and also the learned HCGP for the respondent-State.

Learned counsel for the petitioner during the course of his arguments submitted that looking to the allegations made in the complaint, it shows that the petitioner has not at all committed the forcible sexual intercourse on the complainant. Learned counsel has submitted that the allegation of forcible sexual intercourse is only against accused No. 2. He has further submitted that the statement of the complainant was recorded u/s 164 of Cr.P.C. before the Magistrate Court. Even looking to that statement also, it will not make out a case as against the petitioner that he has committed the forcible sexual intercourse on her. Learned counsel has submitted that even if, the allegations in the complaint are taken to be true for the purpose of argument and appreciation of the case and even then, it shows that the sexual intercourse between the petitioner and the complainant is consensual in nature. He has also submitted that no prima-facie case has been made out against the petitioner. Hence, he has submitted that by imposing reasonable conditions petitioner may be enlarged on bail. Learned counsel in support of his contention relied upon the following decisions.

(2010) 2 SCC (Cri) 695

2013 CRI.L.J. (NOC) 182 (GUJ.)

2008(3) CRIMES 469 (ALL.)

As against this, the learned HCGP during the course of his arguments submitted that looking to the statement of victim girl, in the complaint as well as her statement before the Magistrate Court, both will show that there is a forcible sexual intercourse on her. He has submitted that even the medical opinion also supports the case of the prosecution. He has submitted that complainant has also given the further statement, wherein she has also stated about the forcible sexual intercourse on her by both the accused i.e., accused Nos. 1 and 2. He has submitted that during investigation, Investigating Officer has seized three Kingfisher empty beer bottles. He has submitted that looking to the prosecution material the prima-facie case has been made out to show that both accused Nos. 1 and 2 have committed the forcible sexual intercourse on the complainant and thereby committed the alleged offence. Hence, he has submitted that petitioner is not entitled to be granted with bail.

I have perused the averments made in the bail petition, FIR, complaint and also the file produced by the learned HCGP containing the investigation materials. Looking to the complaint averments victim girl Pooja stated in her complaint that from 10 months she was in a relationship with the petitioner/Abishek, when she met through a social networking site, and they met about 3-4 times and because of some misunderstanding regarding the finance, they had no talks or any kind of contact since 3-4 months. Due to a common friend Manju, who met her two days ago, they go back in contact. Since, the petitioner was asking her to meet from then. She accepted and met him early morning at 3.45 a.m. and they drove to Nice road by 4.00 a.m. and they were having some beer and moving ahead. Later around 4.30 a.m. they drove to a lonely place, where they parked the car and friend of Abishek got down with his bottle of beer, by then they had finished their drinks. They were sitting in the back seat of the car and having talks, later which lead to romance and they made out. Later, Abishek got down of the car and she did not asked him why, as she actually thought that he was going to toilet. Then his friend got into the car, mostly thinking that she was high and she could not notice that it was not Abishek. But she knew that it was not Abishek and started shouting as Abhi, thinking that he was not involved and later she somehow managed to open the door and then she realized it was Abhi''s preplan. As he himself closed the door saying that "this is her reward on cheating him". After, when his friend was completely done with what he wanted to do, Abhisek got back into the car, where she was shouting to leave her there, but, then they did not. They started driving back towards PES college nice road toll. Thereafter, around 6.00 a.m. police met her near Gopalan Arcade and got her to the police station. Hence, she requested to take action on both Abishek and Raju for sexually assaulting her. On the basis of the said complaint, case has been registered against Abishek as well as Raju for the alleged offences.

I have also perused the further statement of the complainant dated 21.07.2014, so also the statement, which she has given before the Magistrate Court u/s 164 of Cr.P.C. Perusing the statements of the victim girl they prima-facie shows that she was taken by accused Nos. 1 and 2 in the car and then at the spot they administered drinks to her. Though it is the contention of the learned counsel for the petitioner that so far as petitioner is concerned, the intercourse is with the consent of the victim girl, but when the materials shows that she was made to consume the liquor, which fact is also supported from seizure of three empty beer bottles from the Investigating Officer, it is difficult for this Court to accept at this stage that there was consent by the victim to the petitioner for the sexual intercourse. The attending circumstances are also important for appreciating the case on hand that when accused No. 1 went out of the car after having romance with the victim as mentioned in the complaint, accused No. 2 came into the car and when she tried to come out of the car, it is accused No. 1, who came and closed the door of the car and locked it, and prevented the victim from coming out of the car and when she asked accused No. 1, what they are doing, then he told her that, that was the reward for her for cheating him.

I have also perused the medical report, wherein the doctor, who has examined the victim girl has stated that hymen was not intact and it admits two fingers and the individual is used to an act like that of sexual intercourse. It is no doubt true, in one of the decisions relied upon by the learned counsel for the petitioner it is held by the Hon''ble Supreme Court that the materials show commission of sexual intercourse, but not of rape. But perusing the facts and circumstances in that reported decision and the facts and circumstances involved in the case on hand, they are not one and the same. The said decision is while considering the appeal before the Hon''ble Supreme Court against the judgment of conviction, but in the case on hand; it is at the stage of considering the bail application. In another judgment of Allahabad High Court relied upon by the learned counsel for the petitioner, the applicant/accused involved was a juvenile. The complaint is not the encyclopedia to contain all the details. Looking to the cumulative effect of the entire material placed on record, it prima-facie shows that it is a pre-planned gang-rape on the victim and it cannot be inferred that there was consent of the victim with the petitioner. As submitted by the learned HCGP the matter is still under investigation and accused No. 2 is absconding and the Investigating Officer has to take steps to arrest accused No. 2 also. The decisions relied upon by the learned counsel for the petitioner will not come to the aid and assistance of the petitioner at this stage. Looking to the materials on record, I am of the opinion that petitioner is not entitled to be granted with bail.

Accordingly, petition is rejected.