Devaraj vs State of Karnataka

Budihal R.B., J.—This is a petition filed by the petitioner-accused No. 1 under Section 439 of Cr.P.C. seeking his release on bail of the alleged offences punishable under Section 363 and 344 of IPC registered in respondent Police Station Crime No. 69/2012 and after completion of the investigation Police have submitted the charge sheet against the petitioner and four other accused persons for the alleged offences punishable u/s. 344, 366, 376(1) of IPC, u/s. 6 and 16 of the POCSO Act, 2012 and u/s. 9 and 10 of The Prohibition of Child Marriage Act, 2006.

The averments of the complaint in brief are that, mother of the victim girl lodged complaint stating that the victim was aged 17 years and she was the resident of Chickbudihal village. She was a minor and on 17.02.2014 at about 8.30 to 9.00 p.m. when the victim girl had gone behind her house for answering the nature''s call, the accused caught her by closing her mouth and kidnapped her on the motorcycle with the assistance of accused No. 2 and went to Anavatti village. From there, with the assistance of accused No. 3 gone to Balligave temple. On 18.02.2014 the petitioner with the intention to marry her secured necessary articles with the help of accused No. 4. The petitioner with the assistance of accused Nos. 2 to 4 married the victim girl. Thereafter the petitioner took her to the house of accused No. 5 situated at Hullinakoppa village and took shelter there for three days where he had sexual intercourse with her against her will. Thereafter he returned to Haunsbhavi village and compromised with the family members of the victim and compromised to keep her making separate arrangement for her. The petitioner kept the victim girl in a pump house situated in the village. Petitioner used to provide her food regularly and at that time he had sexual intercourse with her for about two months.

I have heard arguments of the learned counsel for the petitioner-accused No. 1 and also the learned Addl. State Public Prosecutor.

Learned counsel for the petitioner made submission that, looking to the averments it is seen that when the victim girl went out of the house to answer nature''s call at about 7.00 p.m. the petitioner took her and kept in a pump house in the land and confined her. He used to lock the room from outside, he was regularly providing food to her. Hence, learned counsel made submission that, in the complaint there is no allegation or averment that by keeping the victim girl in such a place, petitioner used to have sexual intercourse with her.

Learned counsel also submitted that as per the complaint averments, mother of the victim girl came to know about the said fact when she had been to the land to do coolie work and when she was thirsty she went to drink water. At that place she saw her daughter. After seeing the complainant, the victim girl started to weep and she narrated the incident as alleged in the complaint. Hence, learned counsel submitted that, even as per the statement of the victim girl recorded u/s. 161 of Cr.P.C. by the Police immediately after tracing the victim girl, she never stated that the accused committed sexual intercourse with her.

Learned counsel submitted that the entire story is made by the prosecution on the basis of the statement said to have been given by the victim girl before the learned JMFC, Hirekerur, under Section 164 of Cr.P.C. He submitted that even the intention is also inconsistent and it is not supported by the case of the prosecution. Now the investigation is completed and charge sheet is filed. Hence, by imposing reasonable conditions the petitioner may be enlarged on bail.

Per contra learned Addl. State Public Prosecutor made submission that, investigation materials clearly go to show that the victim girl was kidnapped and the petitioner kept her in the electrical room situated in the agricultural land for a period of more than 2 months and he used to lock room from outside whenever he goes to work and he was providing food to her regularly. It is also his contention that, in the statement of the victim girl recorded before the I.O. there may not be much details about the alleged sexual intercourse on her but looking to her statement recorded under Sec. 164 of Cr.P.C. before the learned J.M.F.C., Hirekerur, wherein she deposed that she was subjected to sexual intercourse by the petitioner number of times. Learned Addl. State Public Prosecutor submitted that the victim girl was aged in between 15-17 years as per the opinion of the Doctor who examined her and hence provisions of the POCSO Act are also made applicable and the charge sheet material goes to show that the petitioner has committed offence even under the provisions of POCSO Act. Hence, he submitted that even the medical evidence is also supporting the case of the prosecution prima facie. In view of the same petitioner is not entitled to be granted with bail.

I have perused the grounds urged in the bail petition, FIR, complaint, charge sheet papers and also materials produced by the learned counsel for the petitioner along with the petition so also I have perused the statement of the victim girl recorded before the learned JMFC Court at Hirekerur in Crime No. 69/2014. On perusing the complaint averments mother of the victim girl lodged complaint stating that when her daughter had been to answer nature''s call on 17.02.2014 at about 7.00 p.m. she did not come back. Even after they have searched she was not available to them. Complaint averments also go to show that on 28.05.2014 when the complainant had been to the land of the accused to do coolie work and in the process of doing work she got thirsty and went to the electrical room situated in the land to drink water wherein she heard the sound of her daughter and saw her daughter weeping. The victim girl told before the complainant that the petitioner kidnapped her and kept her in the said room and locked the room from outside. Then on the next day itself complaint is lodged by the mother.

It is true as it is rightly submitted by the learned counsel for the petitioner herein that, on the very next day the I.O. recorded statement of the victim girl under Section 161 of Cr.P.C. wherein also it is just mentioned that the present petitioner kidnapped the girl and took her to the said room and confined her. There is no statement by the victim girl before the I.O. about the sexual intercourse was committed on her by the accused.

Looking to her statement given on oath before the learned J.M.F.C., Hirekerur which was recorded u/s. 164 of Cr.P.C. wherein she has narrated in detail what was happened to her. Even it is mentioned that the present petitioner with the help of other accused persons against her will forcibly tied Tali (Mangalasutra) to her and got her married and he has committed sexual intercourse on her forcibly.

I have perused the medical evidence of the Doctor of District Hospital, Haveri, who has examined the victim girl, who gave report thus:

"I am of the opinion that after physical examination that she is used to act like that of sexual intercourse and recent signs of sexual intercourse are absent in the form of injuries and presence of seminal stains and spermatozoa."

I have also perused the another medical certificate issued by the District Hospital, Haveri. Looking to the said certificate it is mentioned by the Doctor in his opinion column.

"On local genital examination evidence of signs of recent sexual intercourse present in the form of presence of semen stains and hymen was ruptured, the individual is used to an act like that of sexual intercourse"

Age of the victim girl is 15-17 years as per the opinion of the Doctor.

I have perused the FSL report. Five articles were sent for Forensic Science Laboratory for examination. Looking to the opinion column presence of seminal stains was detected in item No. 2. Item No. 2 is Chudidar pant.

On perusal of the materials available of the Doctor coupled with Doctors'' opinion, there is rupture of hymen and as per the medical certificate there are recent signs of sexual intercourse. The opinion is also supported by the statement of the victim girl which was given before the learned JMFC Court at Hirekerur. It may be true that in the statement recorded before the I.O. u/s. 161 of Cr.P.C. there is no such mention by the victim girl but when the case of the prosecution is supported by the opinion of the Medical officer and also the investigation material collected by the I.O. during the investigation and more particularly the statement given before the learned JMFC Court, Hirekerur. Only on the ground that in the statement given before the I.O. the victim girl has not stated, the entire material cannot be ignored by the Court at this stage. Regarding the delay in filing the complaint, the complaint itself is very clear that the victim girl was kept in confinement by the present petitioner and when the victim girl was a minor, after she was brought back, on the next day itself complaint was lodged before the Police. The entire investigation material go to show that the prosecution placed prima facie materials about the offence punishable u/s. 376 of IPC and also under the provisions of POCSO Act, 2012.

Looking to the materials on record, I am of the opinion that it is not a fit case to exercise the discretion in favour of the present petition. Accordingly, petition is rejected.