Vidyasagar vs State Of Karnataka

H.P. Sandesh, J

This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner in Crime No.122/2020 of Chincholi Police Station, Kalaburagi District, for the offences punishable under Sections 363, 366(A), 448, 343, 376(2)(N) of IPC and Sections 4 and 6 of the POCSO Act.

Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the State.

The factual matrix of the case is that at the first instance when the complaint was given, penal provisions of Sections 363 and 366(A) were invoked against the petitioner herein and after the investigation, the police have filed the charge sheet and invoked additional offences i.e., Sections 448, 343, 376(2)(n) of IPC and Sections 4 and 6 of the POCSO Act.

The learned counsel for the petitioner would submit that the petitioner has been falsely implicated in the case and the victim was produced before the doctor. On medical examination, the doctor has given the report that there is no evidence of recent sexual intercourse with her. The learned counsel would submit that 164 statement of the victim was recorded before the Magistrate, wherein she has stated that this petitioner has not done anything. There was a galata between the petitioner and her maternal uncle and hence a false case has been registered against the petitioner. The learned counsel brought to the notice of this Court that the victim was examined before the Trial Court on 28.09.2021, wherein also she has not supported the case of the prosecution and she has turned hostile. The learned counsel also submits that the other family members were also examined before the Trial Court and they have also not supported the case of prosecution. The petitioner has been in custody from 21.05.2021. The learned counsel submits that the victim has not supported the case of the prosecution and there is no medical evidence and hence the petitioner cannot be tried in the custody. Hence, he may be enlarged on bail.

Per contra, the learned High Court Government Pleader appearing for the State submits that only the victim is examined and the doctor has not been examined and yet to examine the other prosecution witnesses and hence it is not a fit case to exercise the discretion and the victim is below the age of 18.

Having heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the State and also on perusal of the records, no doubt, an allegation is made against the petitioner in the complaint that the victim was kidnapped and later on, during the course of investigation, the Investigating Officer has collected the material and filed the charge sheet for the offences punishable under Section 376 of Cr.P.C. The learned counsel for the petitioner brought to the notice of this Court the medical certificate, wherein the doctor has opined that that there is no recent sexual intercourse. Apart from that, the victim was examined before the Magistrate under Section 164(5) of Cr.P.C., wherein also she has categorically stated she is not having any acquaintance with the petitioner herein and also specifically stated that there was a quarrel between her maternal uncle and the petitioner and hence a false case has been registered against the petitioner. Even in the evidence also the victim has not supported the case of the prosecution. Having considered the medical report even though the doctor has not been examined and considering no evidence of the recent sexual intercourse, I am of the opinion that the petitioner is entitled for bail and there is no need of custodial trial. Already the evidence has been commenced and some of the witnesses have been examined and in the absence of any prima facie material against the petitioner, the petitioner may be enlarged on bail.

In view of the discussions made above, I pass the following:

ORDER The petition is allowed. Consequently, the petitioner shall be released on bail in connection with Crime No.122/2020 of Chincholi Police Station, Kalaburagi District, for the offences punishable under Sections 363, 366(A), 448, 343, 376(2)(N) of IPC and Sections 4 and 6 of the POCSO Act, subject to the following conditions:

(i) The petitioner shall execute his personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two sureties for the like-sum to the satisfaction of the jurisdictional Court.

(ii) The petitioner shall not indulge in tampering the prosecution witnesses.

(iii) The petitioner shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the Court for any genuine cause.

(iv) The petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Court till the case registered against him is disposed of.