Salim and Others vs The State of Karnataka

Budihal R.B., J.—These two petitions are filed by the accused Nos. 1 and 2 under Section 439 of Cr.P.C. seeking their release on bail of the alleged offences punishable under Section 366, 376(2)(I)(J), 376(D), 109 r/w Sec. 34 of IPC, Sec. 4 and 17 of the POCSO Act and Sec. 3(1)(XII), 2(V) of SC/ST (POA) Act, 1989 registered in respondent Police Station Crime No. 193/2015 in Gadag Rural Police Station.

Brief facts of the prosecution case are that on 08.08.2015 at about 7.00 p.m. when the complainant had gone to attend nature''s call. At that time, one Santosh Madar-accused No. 1 and three others attacked her and made the complainant to smell some powder as a result of which she became unconscious. Thereafter, she was kidnapped in an auto. It is further contended that when she regained consciousness she was left in an agricultural land, she came to know that she was lying there without clothes, and she had sustained injuries. Afterwards she worn the clothes and went to her parents house and informed her mother. On the basis of her complaint a case has been registered for the alleged offences.

Firstly, the case was registered as against accused No. 1 herein and also the other three persons whose names are not mentioned. But, during the course of investigation the present petitioners had been arrayed as accused Nos. 1 and 2. Hence, they have approached this Court.

I have heard arguments of the learned counsel for the petitioners and also the learned Govt. Pleader for the respondent-State in respect of both the petitions. Since common questions of law and facts are involved in both the petitions they are heard together and disposed of by this common order.

Learned counsel for the petitioners made submission that as per the original complaint that was lodged by the victim, it was on 10.08.2015 alleging that the incident has taken place on 08.08.2015 at 7.00 p.m. It is the allegation that when she had been to attend nature''s call at about 7.00 p.m. at that time accused No. 1 along with his other friends came to the said place and he put some powder into her nose and then she became unconscious and they took her man auto.

Learned counsel further submitted that her further statement was recorded by the I.O. on 14.08.2015. Looking to this further statement and the averment in the statement it is totally contrary to what she has stated in the original complaint dated 10.08.2015. He further submitted that the complainant herself admitted in her further statement that in the earlier statement she has made a false complaint because of the fear of her family members. Hence, it is her statement. Looking to these aspects of the matter they clearly go to show that no prima facie case has been made out as against the present petitioner and they have been falsely implicated in the case. Learned counsel also submitted that even looking to the medical report there is no finding or opinion given by the Doctor that the victim has been subjected to such sexual intercourse. Hence, learned counsel for the petitioners submitted that, by imposing reasonable conditions the petitioners may be enlarged on bail.

Per contra learned Govt. Pleader made submission that the averments made in the complaint dated 10.08.2015 and the averments in her statement recorded u/S. 164 of Cr.P.C. on oath before the Magistrate Court they are one and the same. She also submitted that, no doubt looking to the further statement dated 14.08.2015 it is mentioned that the incident said to have been taken place at 2.00 p.m. and not at 7.00 p.m. It is also mentioned in the further statement that earlier she made false statement because of fear.

Learned Govt. Pleader further submitted that, looking to her earlier version as per the original complaint dated 10.08.2015 so also her statement before the Magistrate Court under Section 164 of Cr.P.C. which was recorded on 11.08.2015, i.e., immediately on the next date alleging in the complaint, they are consistent with each other and so far as the further statement said to have been given before the I.O. is concerned, it is the matter to be ascertained during the course of trial. Hence, learned Govt. Pleader submitted that the petitioner is not entitled to be released on bail.

I have perused the averments made in both the petitions and also the documents produced in the case so also the submission made by the learned counsel on both the sides at the bar.

Looking to the materials placed on record and as it is rightly submitted by the learned counsel for the petitioners that the original complaint was lodged on 10.08.2015 wherein the allegation is that at 7.00 p.m. when she had been to attend nature''s call the present petitioner along with his friends came there and put some powder to her nose then she became unconscious. Thereafter when she regained conscious she was in the land and there were no clothes on her body, they were lying around her. Then she worn the clothes and went to her parents house.

On perusal of the statement of the victim recorded before the learned Magistrate on 11.08.2015 u/S. 164 of Cr.P.C. it is seen the averments made in the statement u/S. 164 of Cr.P.C. are consistent with the original complaint dated 10.08.2015. It is true that she has stated in her further statement on 14.08.2015 that the incident has taken place at 2.00 p.m. and not at 7.00 p.m. It is also mentioned that with respect to the time of the incident in the earlier complaint she made false statement because of the fear of the family members. Regarding this aspect of the matter, so far as her further statement is concerned, as it is rightly submitted by the learned Govt. Pleader, this is the aspect to be taken into consideration during the course of trial and the original complaint and the deposition given before the Magistrate u/S. 164 of Cr.P.C. both are bearing her signature.

On going through the materials produced in the case and the school certificate it transpires that the victim was aged about 14 years, which means, she was even below the age of 16 years. When such being the case the offences are alleged to have been under the provisions of POCSO Act and the provisions of SC/ST (P.O.A.) Act are also attracted. Placing reliance only on the further statement u/S. 161 of Cr.P.C. the entire materials of the prosecution cannot be brushed aside or rejected at this stage.

I have also perused the medical opinion. Even the Doctor stated that the victim girl was unconscious. In the certificate at opinion column of the Gadag District Hospital regarding examination of the victim girl at sl. No. 3 in their opinion it is observed thus:

"patient was unconscious during the act and she does not know what had been done."

Under the above circumstances regarding the unconsciousness also prima facie it goes to show that some powder as alleged in the complaint was thrown out to her nose and immediately she become unconscious.

Considering all these aspects of the matter, I am of the opinion that it is not a fit case to exercise discretion in favour of the petitioners herein. Accordingly, both the petitions are dismissed.