Vinod Kumar vs State of Karnataka

Budihal R.B., J.—This is the petition filed by the petitioner-accused No. 1 u/s 439 of Cr.P.C. seeking his release on bail for the offences punishable under Sections 506, 376 of IPC registered by the respondent-police in Crime No. 102/2013 and now pending in S.C. No. 75/2013.

The brief facts of the prosecution case as per the averment in the complaint that on 16-03-2013 in the night CW-2 left CW''s-1, 3, 4 and his daughter Bhavyashree in his residence and had been to see the Jathra and Karata Festival at Avani village. While CW-1 locked the door and sleeping inside the house, the accused knew about CW-1 alone inside the house, at about 2 ''O'' clock in the mid night came near the house of CW-1 and stepped to the terrace and jumped and came inside the house and tried to rape CW-1, while she was in sleeping mood. When CW-1 was awake and protested for the same, the accused forcibly had intercourse with her against her will and wish and committed rape on her. When CW-1 shouted, CWs''-3 and 4 got up and at that time accused brought kerosene can from the kitchen and threatened CWs''-1, 3 and 4 for having shouted to pour kerosene and to burn them. At that time, CWs''- 5, 6, and 7 knocked the door and accused escaped from the same path On the basis of the said complaint, case has been registered against the petitioner.

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

Learned counsel for the petitioner during the course of his argument submitted that there is no prima-facie material placed by the prosecution to show the involvement of the present petitioner in the commission of the alleged offence u/s 376 of IPC. The counsel made the submission that though in the complaint it is mentioned that accused committed sexual intercourse on her against her will, but perusing her statement she has given before the Magistrate Court u/s 164 of Cr.P.C. it is all together different and hence he submitted that the statement of witnesses will not go to show the prima-facie material against the petitioner. He also submitted that the children of the complaint are not eye witnesses, even if their statement is taken to be true what they have stated is when they saw the petitioner, he was on banian and under wear and he was having kerosene oil can in his hand. Hence, counsel submitted that the petitioner is ready to abide by any reasonable conditions to be imposed by this Court. The investigation of the case is completed and charge sheet has been filed. In support of his contention learned counsel for the petitioner relied upon the decisions of the Allahabad High Court reported in 2008(3) Crimes 469 and Hon''ble Supreme Court reported in (2010) 2 SCC (Cri.) 695. The learned counsel also relied upon the order passed by this Court in Crl. P. Nos. 4448/2012 c/w. 4162/2012, 4424/2012 dated 17-09-2012 and also another order passed in Crl. P. No. 6403/2012 dated 17-09-2012.

As against this, the learned High Court Government Pleader during the course of his argument submitted that the complainant clearly stated in her complaint that the petitioner came inside the house during night and he committed sexual intercourse against her will. He made the submission that there are statement of eye witnesses i.e., the children and complainant who have also stated in their statement about the alleged act committed by the petitioner. Learned Government Pleader further made the submission that even the neighbours who came and kicked the door also gave the statement that they have seen the accused person inside the house of the complainant and then he ran away from that house. Hence, he also made the submission that the complainant gave the statement before the Magistrate Court at Mulabagal u/s 164 of Cr.P.C. and all these materials prima-facie goes to show the commission of alleged offences by the petitioner and hence petitioner is not entitled to be released on bail.

I have perused the averments made in the bail petition, FIR, complaint, other charge sheet materials and the order passed by the lower Court and also perused the decisions relied upon by the learned counsel for the petitioner which are referred above.

Perusing the averments made in the complaint, so also the statement given by victim before the Magistrate Court u/s 164 of Cr.P.C. there is no consistency in between the two. Therefore, it is a matter to be ascertained by the trial Court during the course of trial. Perusing the statement of witnesses, the children of the victim and as it is rightly submitted by the learned counsel for the petitioner that they have not seen the petitioner committing the alleged rape on the victim, but their statement goes to show that when they saw the petitioner he was standing in the house on banian and under wear holding oil can in his hand. Therefore, the statement of witnesses recorded by the prosecution at this stage and the statement given by the victim before the Magistrate Court there is inconsistency between the two. I have perused the decisions and principles relied upon by the counsel for" the petitioner. Now the investigation of the case is already completed and charge sheet has been filed. So far as the apprehension of the prosecution that if released on bail, petitioner may tamper the prosecution witnesses and even he may run away. Reasonable conditions can be imposed which will safeguard the interest of the prosecution. Looking to the materials on record, I am of the opinion that it is a fit case to exercise the discretion in favour of the petitioner.

Accordingly, petition is allowed. The petitioner-accused No. 1 is ordered to be released on bail for the offences punishable under Sections 506, 376 of IPC registered by the respondent-police in Crime No. 102/2013 and now pending in S.C. No. 75/2013, subject to the following conditions:

(i) The petitioner shall execute a personal bond for a sum of Rs. 50,000/- (Rupees Fifty Thousand only) with one solvent surety for the likesum to the satisfaction of the concerned Court;

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

(iii) The petitioner shall appear before the concerned Court regularly.