Prakash vs The State of Karnataka

Budihal R.B., J.—This is the petition filed by petitioner-Accused No. 1 under Section 439 of Cr.P.C. seeking his release on bail of the alleged offences punishable under Sections 363, 376(2)(I), 420 of IPC and Sections 4, 6 and 7 of the POCSO Act, 2012, registered in respondent police station Crime No. 191/2014.

Brief facts of the prosecution case as per the complaint averments are that on 05.02.2014 one Smt. Pushpa w/o. Venkatareddy Totad filed a complaint before Guttal Police alleging among other things that her husband''s place is Ningarhatti of Chitradurgha Taluk and since about seven years back her husband has expired, she came along with her daughters and started staying along with her brother in her matrimonial place at Kerekoppa Village, Tq: Haveri. Her elder daughter is already got married. Her younger daughter by name Roopa is about 16 years. On 24.11.2014 during night hours her daughter Roopa by saying she is going for answering nature call went outside the house but did not turn up. The complainant and others search for Roopa and enquired about her to several persons including her relatives. On such enquiries she came to know through one Narayanappa Dunnur and another by name Siddappa Malladad that the petitioner herein took her towards Gudasalakoppa Village. It is alleged that the petitioner, his father and his younger brother abducted a complainant''s daughter Roopa, who is minor. On the basis of said complaint, earlier a case has been registered under Section 363 of IPC and later police filed charge sheet for the offences punishable under Sections 363, 376(2)(2)(I), 420 of IPC and Sections, 2, 6 and 12 of POCSO Act, 2012.

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

Learned counsel for the petitioner/accused No. 1 made the submission that the petitioner has not at all committed the offence of rape and he has been falsely implicated in the case. It is also his submission that even according to the victim girl also no such offence has been committed. He also made the submission that the statement of victim girl has been recorded before the Magistrate Court under Section 164 of Cr.P.C. wherein also she has not stated about commission of the alleged offence punishable under Section 376 of IPC. Hence, he submitted that subsequently i.e. after six days the investigating officer said to have recorded the statement of victim girl, wherein it is said that the victim girl also stated that she has been subjected to forcible sexual intercourse by the present petitioner. Hence, he submitted that this is after thought and after having deliberations by the prosecution to suit its case. Hence, he submitted, by imposing reasonable conditions the petitioner may be enlarged on bail.

Per contra, learned HCGP made the submission that even though in the statement given before the Magistrate Court the girl has not stated about the incident of forcible sexual intercourse on her by the petitioner, but subsequently i.e. on 30.11.2014 in the statement before the Investigating Officer wherein she has explained why she has not stated about the forcible sexual intercourse on her when her statement was recorded by the Magistrate. Hence, learned HCGP submitted the statement recorded by the Investigating Officer clearly goes to show the commission of the alleged offence even under Section 376 of IPC. Hence, she submitted to reject the bail petition.

I have perused the averments made in the bail petition, also the FIR, Complaint and other materials produced in the case. As submitted by the learned counsel for the petitioner in the statement of the victim girl herself given on oath before the Magistrate Court on 24.12.2014 there is no mention that she has been subjected to sexual harassment or sexual intercourse by the present petitioner. It is simply stated that the petitioner took her to Gudasalakoppa Village from there to Haveri and from Haveri she was taken to Dharmasthala and they stayed two days in Dharmasthala thereafter they went to Kukke Subramanya and stayed there for a period of one week and they come back. Except this she has not stated in her statement about the alleged offence punishable under Section 376 of IPC. I have also perused the statement of victim recorded on 30.11.2014 said to have given before the Investigating Officer. It is no doubt true that in this statement she has also stated that when she was taken to said places by the present petitioner and committed sexual intercourse on her and because of fear she has not stated about all those things before the Magistrate when her statement was recorded under Section 164 of IPC. I have perused the FSL report. Looking to this report total 13 articles were sent for examination. Looking to the result of the analysis and the opinion on the stains it is mentioned the stains were not detected on item Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12. It is also mentioned tissue was not detected on item No. 13. Looking all these and contention of the petitioner in the bail petition that he has not committed the offence of rape on victim girl, in my opinion that whatever she has stated before the Investigating Officer after lapse of six days it is after recording her statement by the Magistrate Court and this matter is to be ascertained during the course of trial. Looking to the materials placed on record at present and more particularly the statement of the victim recorded under Section 164 of Cr.P.C. it is fit a case to exercise discretion in favour of the petitioner. Accordingly, the petition is allowed and the petitioner/accused No. 1 is ordered to be released on bail of the alleged offences, subject to the following conditions:

"1) Petitioner to execute personal bond for Rs. 50,000/- with one surety for the likesum, to the satisfaction of the concerned Court.

2) He shall not tamper with any of the prosecution witness directly or indirectly.

3) He shall appear before the concerned Court regularly."