G.S. Madusudan and Others vs State

L. Narayana Swamy, J.—Heard the learned counsel for the petitioners and the learned Government pleader appearing for the respondent - State.

The petitioners are accused Nos. 1 to 3 in a case bearing Crime No. 139/2013 on the file of Kuvempunagara Police Station, Mysore pending in S.C. No. 186/2013 on the file of the VI Addl. Dist and Spl. Judge, Mysore. Offences alleged against them are punishable under Sections 376, 366(A), 343 r/w Section 149 of IPC and Sections 3, 4, 5 and 6 of I.T.P. Act and Section 23 J.J. Act. The petitioner has been in judicial custody since 26.04.2013. Hence, they have filed regular bail applications under Section 439 of Cr.P.C.

On receipt of telephonic call from the victim to the Police Commissioner of Mysore, he has informed the Child Welfare Committee of Mysore District to visit the house of the victim and rescued the girl. The Committee had visited the house of the victim and rescued the girl and sent the victim girl to child home. From there, the statement of the victim has been recorded on 25.04.2013. In the statement she had stated that she was forced by her mother -Accused No. 1 and her friend and Geetha - Accused No. 2 and other accused persons for sexual assault and she was subjected to sexual assault by Accused Nos. 4 to 9. On the basis of her statement, the Committee also had forwarded the complaint to the Kuvempunagara Police Station, Mysore on 25.04.2013 which has been acknowledged on 26.04.2013 in the said Office.

Learned counsel for the petitioners submit that as per Section 35 of POCSO Act, within a period of one year from the date of taking cognizance of offence, the trial should be completed which is mandatory which contemplates that the trial should be completed as early as possible within a year. But, it is more than two years, the trial has not been completed and on this ground also the petitioners could be granted bail and these accused persons cannot be kept in judicial custody till the completion of the trial since the same is likely to take substantial time. The prime witness namely the victim girl herself turned hostile and there is nothing left to the prosecution to prove the case against the petitioners. On this ground also, the petitioners can seek bail.

As against this, learned HCGP has vehemently opposed the bail application and request this court to dismiss the bail applications and submitted that the telephonic call made to the Commissioner cannot be denied and further instructions to the Committee and visiting of the Committee to the house of victim along with the police are not in dispute. The victim girl has made first statement to the Committee on 25.04.2013 in which she had particularly stated that her mother, her friend and other accused persons have committed the offence and she was in captivity for the said offence. Till then the entire case of the prosecution is not disputed.

With reference to the cross-examination of the victim, learned counsel for the petitioner submits that though this does not corroborate with the statement of the victim made to the Committee on 25.04.2013, the case is not only depending upon the evidence of P.W. -1. He further submits that the trial has already begun and prime witnesses have been examined and the remaining witnesses are Investigation Officer/s who are yet to be examined.

Heard the learned counsel for both the parties and gone through the papers made available in the file.

Accused Nos. 1, 2 and 3 are mother of the victim, her friend and another person along with other accused persons have committed a heinous offence against the victim girl who is aged about 14 years. She resisted for a long time and called over telephone to the Commissioner complained that she was subjected to sexual assault with co-operation of her mother only. The complaint made that too against the mother to the Committee itself is sufficient to decide the case of these accused whether to grant bail or to reject.

The submission of the learned counsel for the petitioner that there was a delay of one day in filing complaint to the police also cannot be accepted herein. The complaint is dated 25.04.2013 i.e., the same day the victim girl was made a statement to the Child Welfare Committee and this was dated as if it is received on 25.04.2013 by the Police Station and for which it is for the Police Station who is answerable and the same cannot be attributed to the Welfare Committee or to the victim. In respect of statement in her evidence dated 08.01.2014, she has adduced that she has not seen Madhusudan and not known who is he and further stated that the mother has not insisted her to have sexual abuse by the others and she only bet her, except that she has not done anything, but for what purpose the mother was beating is not stated. Be that as it may, as submitted by the learned counsel for the petitioner, the prime witnesses have been examined and the remaining witnesses are police officers, Police Commissioner who was in receipt of the telephonic call. In the light of these circumstances, the question would arise that if the petitioners are released on bail, they may tamper the witnesses, they may escape from the trial.

In respect of the last question, no doubt it is heinous offence against the victim girl and also to the State. Accused No. 1 is none other than mother of the victim. The child is aged about 14 years, she states that her mother and her friend and another person by name Madhusudan have forced the victim girl for sexual abuse by the number of persons whose names are furnished in the complaint. Now, the victim girl who made a complaint is in Child Home. It shows that the entire case is based on the evidence of material witnesses.

The question in all the cases of heinous offences said to have been committed is gravity of the offence. The Hon''ble Supreme Court has held that the heinous offence itself is not a ground to deprive bail. It is one of the considerations along with other factors to be kept in mind. As already stated, it is a heinous offence against the victim girl and also to the State. Trial has to be completed and if it is proved, accused are liable for conviction and ultimately acquitted in case of failure. Taking into consideration that these petitioners are in judicial custody for more than two years, the victim girl is in the custody of the father and under these circumstances, I am inclined to grant bail with a condition that Accused Nos. 1 and 2 shall not visit the victim girl till the trial is completed. In case if it is found that these accused or any persons on their behalf visit the victim girl, liberty has been reserved to the prosecution to file application/s before this Court to recall the Order and seek cancellation of the bail. With these observations, the petitions stand disposed of.

The petitions under Section 439 of Cr.P.C. are allowed and the petitioners are granted bail in Crime No. 139/2013 on the file of Kuvempunagara Police Station, Mysore subject to the following conditions:

"(i) They shall execute a bond for a sum of Rs. 50,000/- with one surety each for the like sum to the satisfaction of the jurisdictional Court;

(ii) They shall attend the Jurisdictional Police station on every Saturday of the week and mark his attendance for a period of six weeks from the date of release and thereafter appear before the Investigation Officer as and when directed and co-operate with the investigation.

(iii) They shall not hold out threat to prosecution witnesses or tamper with evidence;

(iv) They shall attend the Court on all dates of hearing except on unavoidable circumstances and shall not involve in any criminal activities.

(v) If they violate any of the above conditions, prosecution will be at liberty to seek cancellation of bail."