Santhosha vs State

Budihal R.B., J.—Since, these two petitions are in respect of the same crime number, they have been taken together to dispose of them by a common order. Petitioner in Cri. P. No. 907 of 2014 is accused 1 filed the petition u/s 439 of Criminal Procedure Code, 1973, seeking his release on bail and petitioners in Cri. P. No. 906 of 2014 are accused 2 and 3 filed the petition u/s 438 of Cr.P.C., seeking anticipatory bail to direct respondent-police to release the said petitioners on bail in the event of arrest for the alleged offences punishable u/s 366A of Indian Penal Code, 1860 registered in the respondent-police station Crime No. 9 of 2014 and subsequently, the offences punishable u/s 376 read with Section 34 of Indian Penal Code, 1860 and also under Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 have been inserted in the case.

The brief facts of the prosecution case as per the averments in the complaint are: that one Ravi lodged the complaint on 10-1-2014 stating that his daughter Rachana has been studying in 10th Standard at Survodaya School at Rajaanukunte and on 9-1-2014 his daughter went to the school and she did not return to home. On enquiry at the school, he learnt that his daughter did not attend the school, then the complainant suspected that Sandeep might have kidnapped his daughter and in this regard complainant made the call to Sandeep over mobile vide No. 8123222902 and petitioner said that he has kidnapped the daughter of the complainant and he refused to bring back his daughter. On the basis of the said complaint, firstly, the case was registered against accused 1-Sandeep for the alleged offences punishable u/s 366A of IPC, but, subsequently, by filing the remand application accused 2 and 3 were also included in the case and the alleged offence u/s 376 read with Section 34 of IPC and also under Sections 3 and 4 of the POCSO Act were added in the case.

Heard the arguments of the learned Counsel appearing for the petitioner in respect of both the petitions and also the High Court Government Pleader.

Learned Counsel for the petitioners during the course of his arguments submitted that at the first instance looking to the averments in the complaint, absolutely no allegations are made as against petitioners-accused 2 and 3 but, it is only at a later Stage by filing the remand application the petitioners-accused 2 and 3''s names were also included in the case, so also the offences punishable u/s 376 read with Section 34 of IPC and also provisions of the POCSO Act were added in the case. Learned Counsel also made the submission that even with regard to accused 1, there is no prima facie material placed by the prosecution to show that he has committed the offence of kidnap and rape on the victim girl. Counsel submitted that the true facts are that the victim girl as well as Sandeep were loving with each other and with their free will, they got married and even they have given the photographs to the police. Counsel made the submission that as the Police Officer interested in the case, he has made a false implication of the petitioner-Sandeep in this case and arrested him without there being any satisfactory material. Hence, the Counsel submitted that there is no prima facie material to show that he has committed the alleged offences of rape and also kidnap. Hence, he may also be admitted to bail.

As against this, the learned High Court Government Pleader during the course of his arguments submitted that as on the date of alleged incident, the victim girl was only 13 years old and as per the material collected by the Investigating Officer during investigation, her date of birth is 7-2-1999. Government Pleader also made the submission that the statement of the victim girl is very clear that Sandeep took her on his two wheeler vehicle forcibly against her will and took her to the house of one Kondappa and there though she objected, against her will he committed rape on her. He made the further submission that the statement of witnesses also goes to show the involvement of the petitioner-accused 1 in the commission of the alleged offence. He submitted that the medical report is awaited and it is yet to be received. The matter is also still under investigation. Investigating Officer has to collect some more materials and he has to file the charge-sheet and at this stage all the three petitioners are not entitled to be granted with bail.

I have perused the averments made in the bail petitions, FIR, complaint and order passed by the lower Court on the bail applications and also the other materials placed on record, so also I have perused the photographs produced by the petitioner along with the petition.

It is no doubt true that at the first instance, the case was only against the accused 1-Sandeep for the alleged offence punishable u/s 366A of IPC, but perusing the statement of the victim girl, she has stated in her statement not only the alleged act committed by accused 1-Sandeep, but she has stated in her statement that when accused 1 Sandeep called her that he wanted to marry her and if she did not come with him, he will take her and he will marry her and at that time accused 3 who was present told accused 1 that he can take her and they will see the consequences. On the basis of the statement of the victim girl, subsequently the name of the accused 2 and 3 were added in the case and even the offences punishable u/s 376 of IPC and under the provisions of Sections 3 and 4 of the POCSO Act were also inserted in the case.

So far as the petitioners in Cri. P. No. 906 of 2014 is concerned, the only material on record is the statement of the victim girl that they were telling Sandeep to take that victim girl and they are ready to see the consequences. Except this, there are no other material, at this stage about there involvement in the commission of alleged offence of kidnapping. But, petitioner-accused 1 is concerned, at this stage, statement of the victim girl clearly goes to show the involvement of the present petitioner in the commission of the alleged offence of kidnap as well as rape. Looking to the materials placed on record as on the date of the alleged incident, she was at the age of 13 years Therefore, the contention of the learned Counsel for the petitioner that a their free volition and will both the petitioner and the victim girl married each other cannot be accepted. Even as per the submission made by learned High Court Government Pleader, medical report is yet to be received and investigation is also not completed. Under these circumstances and in view of the serious allegations made against accused 1 with regard to the alleged offences, I am of the opinion that the petitioner-accused 1, at this stage is not entitled to be released on bail. So far as the petitioners in Cri. P. No. 906 of 2014, in view of the above discussion, I am of the opinion that by imposing reasonable conditions they can be admitted to anticipatory bail. Accordingly, Cri. P. No. 907 of 2014 is rejected and Cri. P. No. 906 of 2014 so far as accused 2 and 3 are concerned, it is allowed and the respondent-police are directed to release the petitioners accused 2 and 3 on bail in the event of arrest of the said petitioners for the alleged offences punishable under Sections 366A and 376 read with Section 34 of IPC and under Sections 3 and 4 of POCSO Act registered in the respondent-police station Crime No. 9 of 2014 subject to the following conditions:

(i) Petitioners-accused 2 and 3 each have to execute personal bond for a sum of Rs. 50,000/- (Rupees Fifty Thousand only) with one solvent surety for the like sum to the satisfaction of the concerned Court.

(ii) The petitioners shall not tamper with any of the prosecution witnesses directly or indirectly.

(iii) The petitioners shall make themselves available to the Investigating Officer for interrogation whenever called for.

(iv) The petitioners shall appear before the concerned Court within thirty days from the date of this order and execute the personal bonds and also the surety bonds.