Thibba vs The State

Budihal R.B., J.—This is the petition filed by the petitioner/accused u/s 439 of Cr.P.C. seeking his release on bail for the offences punishable u/s 3(b) and 4 of the Protection of Children from Sexual Offence Prevention Act, 2012 read with Section 354 of IPC registered in respondent-police station in Spl. Case. No. 46/2013. The brief facts of the prosecution case as per the averments in the complaint are that one Sri Shantharaju, father of victim girl filed the complaint on 13.07.2013 alleging that his daughter Shalini aged 7 years and his nephews namely Shivaranjan, aged 11 years and Pradeep, aged 9 years were playing near the house and at about 4.30 p.m. the petitioner/accused came there and he gave chocolates to the nephews of the complainant and asked them to go the house and he took the victim girl Shalini, but the nephews of the complainant having suspicion did not go to the house and they followed the petitioner and the accused took victim girl Shalini towards forest guard i.e., residential houses behind and he made Shalini to sit on the washing stone and he removed the zip of Shalini and removed the zip of his pant and when he was putting his hand to the private part of Shalini, at that time the nephews of the complainant asked the accused what he is doing and they also said him that they will inform in the house, the accused ran away from that place. Then victim girl Shalini and the nephews of complainant informed the same at home and as the complainant''s relative had gone outside, he waited till his arrival and on his arrival, after informing him about the incident, his relative suggested the complainant to file the complaint and as such, the complainant has filed the complaint before the police. On the basis of the said complaint, the case has been registered against the petitioner for the alleged offences.

Heard the arguments of the learned counsel appearing for the petitioner and also the learned High Court Government Pleader appearing for respondent-State.

Learned counsel for the petitioner during the course of his arguments submitted that looking to the allegation in the complaint the petitioner took the victim girl behind the residential quarters and he removed the zip of the victim girl and removed the zip of his pant and when he was putting his hand to the private part of Shalini, at that time the nephews of the complainant asked him what he is doing, then the accused ran away from his place. The counsel submitted that there is no allegation that the petitioner has put his hand into the private part or his fingers into the private part of victim girl Shalini, but when he was about to put his hand into the private part, the nephews have asked him what he is doing and the accused ran away from that place. Hence, the learned counsel submitted that at the most the offence will be u/s 354 of IPC, hence, he submitted that accused may be admitted to bail by imposing any reasonable conditions.

As against this, the learned High Court Government Pleader appearing for the respondent-State during the course of his arguments submitted that perusing the statement of the victim girl Shalini she has stated that when the petitioner was putting his hand into the private part, she had screamed. Therefore, he submitted that looking to the statement of the victim girl itself, it goes to show that the petitioner had put his hand into the private part of the victim girl. He also made a submission that as the father of victim girl did not give the consent for examination of the genital organ of the victim girl, she was not examined by the doctor. Hence, he submitted that there is a prima facie material against the petitioner and hence, he is not entitled to be released on bail.

I have perused the averments made in the bail petition, FIR, complaint, statement of witnesses and the wound certificate issued from the Karnataka Medical Department. Looking to the medical report, the doctor has mentioned in the last paragraph of the report as under:

considering the above mentioned history, clinical examination and the available Medical reports, I am of the opinion that the girl Kum. Shalini has no evidence of external injuries over her genital organ.

So this goes to show prima facie that there are no injuries to the genital organ of the victim girl and looking to the averments made in the bail petition and also the complaint, it is mentioned by the complainant/father that when the petitioner was putting his hand to the private part, at that moment the nephews asked him and then he ran away from that place. The offences alleged are not exclusively punishable with death or imprisonment for life and the investigation of the case is already completed and the charge sheet has been filed and the petitioner is in judicial custody, since from the date of his arrest. The only apprehension of the prosecution is that if the petitioner is released on bail he may tamper the prosecution witnesses and he may abscond. For this apprehension of the prosecution constringent conditions can be imposed, which will safeguard the witness of the prosecution. Accordingly, petition is allowed and petitioner is ordered to be released on bail for the alleged offences u/s 3(b) and 4 of the Protection of Children from Sexual Offences Act, 2012 and Section 354 of IPC registered in respondent-police station Crime No. 59/2013, subject to the following conditions:

i. The petitioner to execute a personal bond of Rs. 50,000/- and to furnish one solvent surety for the like sum to the satisfaction of the concerned Court.

ii. The petitioner shall not tamper any prosecution witnesses, directly or indirectly.

iii. The petitioner to appear before the concerned Court regularly.