Vithal vs The State of Karnataka

K.N. Phaneendra, J.—Heard. The factual metrix that emanate from the records are that the accused-petitioner has abducted the victim girl, who is the daughter of one Panduranga Seemanna of Tevaratti, Athani Taluk. It is seen in the charge sheet that on 31/3/2012, the petitioner persuaded the victim girl, who was aged about 15 years, as on the date of offence, took her on his motorcycle. Both of them went to Kari Siddeshwara temple at Konnur and thereafter, having Darshan of the God, they stayed there, on that particular day and on next day on 1/4/2012, then went to Almatti Dam, Kudalasangama temple and stayed at Kudalasangama on that day. Again on 2/4/2012, they went to Jamkhandi, Kollapur and then to Komba village in Rajapur taluk in Ratnagiri District, Maharashtra, and stayed there up to 3/4/2012 and ultimately, they came back to their village on 8/4/2012 and on the same day, the petitioner was arrested by the police, on the basis of the complaint lodged on 3/4/2012 by the complainant Panduranga Seemanna. The offences registered against him are u/s 366A, 376 and 506 of Indian Penal Code, 1860.

In order to show the age of the girl, a school certificate has been produced before the Court, but, no medical certificate is produced to establish the age of the girl. Further, added to that the medical certificate issued by the Medical Officer, Primary Health Centre, Athani, who has given his opinion in the following manner:-

i) whether she has undergone sexual intercourse-cannot be opined

ii) She is incapable of having sexual activity.

iii) Clothes have been presumed and sent for FSL, hence, opinion is kept pending

iv) Whether public hairs & vaginal swab presented-preserved

v) No external injuries are found.

vi) Hymen is not intact

The medical certificate of the petitioner also shows that there were no external injuries on any parts of the body. Looking to the above said medical certificate, it is very difficult to come to any conclusion at this stage, in view of the opinion that she is incapable of having sexual activity, whether there was any sexual activity taken place between the petitioner as well as the victim girl is doubtful, that has to be clarified by the doctor during the trial. The age of the girl has to be proved beyond reasonable doubt, during the course of full dressed trial. The age is only the important factor that plays a dominant role in this case. The circumstances show that victim and accused went together and attended so many places, so many temples and lived together for a period of 8 days. It creates a serious doubt, whether there was any force or persuasion or any thing of such nature by the petitioner. Therefore, all those tings have to be proved during the course of full dressed trial. The school certificate also at this stage cannot be totally accepted because the said document is also subjected to cross examination.

Under the above said circumstances, I am of the opinion, the petitioner who was arrested on 8/4/2012 and since then he has been in judicial custody, he is entitled to be enlarged on bail.

Hence, the following order is passed:-

ORDER

Petition filed u/s 439 of Cr.P.C. is hereby allowed. Consequently, the petitioner shall be released on bail subject to the following conditions:

i) The petitioner shall execute a personal bond for a sum of Rs. 50,000/- with one solvent surety for the likesum to the satisfaction of the trial Court/Committal Court as the case may be.

ii) The petitioner shall not indulge in hampering the investigation or tampering the prosecution witnesses.

iii) He shall attend Committal/trial Court on all future hearing dates unless prevented by 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.