Pullangada Bheemaiah @ Tomi S/o Late Ayyamma v. State of Karnataka
2017-11-08
BUDIHAL R.B.
body2017
DigiLaw.ai
ORDER : 1. This petition is by the petitioner/accused under Section 439 of Cr.P.C. seeking to release him on bail of the alleged offences punishable under Section 376(2)(1) and 506 of IPC and Section 4 of POCSO Act, 2012 so also under Section 3(2)(v) of SC and ST (Prevention of Atrocities) Act, 1989, registered in Crime No. 30/2017 of Ponnampet Police Station. 2. The brief facts of the prosecution case is that: The victim girl is the complainant wherein she has stated that she had acquaintance with the present petitioner herein. She along with her mother used to go to his shop to purchase the groceries and on one occasion when she had been to the said shop, he touched her body, for which reasons she stopped going to the said shop. Further averments goes to show that she had one mobile phone given by the present petitioner. She had not shown the said mobile to anybody at home. While she was saving the names of other friends, her brother noticed the same and he shouted at her telling that he will see to it next day. Because of that reason and being afraid of her bother’s words, she took some new clothes; left the house and came near the house of the petitioner. While she came there, it is alleged in the complaint that the petitioner took the victim inside the house and made her lie on the ground. Inspite of her protest, he committed forcible sexual intercourse on her. He gave her Rs. 100/- asking her to go home and threatened that she should not disclose about the incident to anybody otherwise he will kill her. 3. On the basis of the said complaint, a case came to be registered for the alleged offenses. 4. Heard the arguments of the learned counsel appearing for the petitioner/accused and the learned High Court Government Pleader for the Respondent-State. 5. Learned counsel for the petitioner submitted that there is delay of four days in lodging the complaint. The alleged incident was on 29.03.2017, but the complaint came to be filed on 03.04.2017. He also submitted that delay is not properly explained. He further submitted that the medical evidence clearly show that absolutely there is no material supporting the prosecution case i.e. injuries on the person of the victim girl so also to the private parts.
The alleged incident was on 29.03.2017, but the complaint came to be filed on 03.04.2017. He also submitted that delay is not properly explained. He further submitted that the medical evidence clearly show that absolutely there is no material supporting the prosecution case i.e. injuries on the person of the victim girl so also to the private parts. The prosecution materials do not attract the offences alleged under Section 376 of IPC. He further submitted that the alleged act is consensual in nature. Hence, there is no prima facie case against the present petitioner. Further, the investigation is completed and the charge-sheet is also filed and statement of the victim girl is also not recorded by the Police Officer having authority under the POCSO Act. By imposing reasonable conditions, the petitioner may be enlarged on bail. In support of his contention, learned counsel for the petitioner relied upon the orders passed by this Court in various other cases. 6. Per contra, learned High Court Government Pleader submitted that the victim girl was about 15 years old, so there cannot be consent from the victim girl to have sexual intercourse with the present petitioner. He submits that on perusal of the complaint as well as her further statement it is clear that there is forcible sexual intercourse on her. He made her lie on the ground and committed sexual act; then he paid her a sum of Rs. 100/- threatening her to go to her house and not to disclose about the incident before anybody. Otherwise, he will not spare her. Because of the threat given by the petitioner so also her brother, the victim girl was wandering out side and that is the reason for delay in lodging the complaint. It is properly explained by the victim girl in her statements. The prosecution has made out a prima facie case by producing the material evidence and hence the petitioner is not entitled to be granted with bail. 7. I have perused the grounds urged in the bail petition, FIR, complaint and other materials produced in this case. 8. In the statement made by the victim girl, nowhere she had admitted that she gave consent or she was willing to have such sexual intercourse with the present petitioner. Even in the complaint as well as in her further statement she has stated that it was forcible sexual intercourse on her.
8. In the statement made by the victim girl, nowhere she had admitted that she gave consent or she was willing to have such sexual intercourse with the present petitioner. Even in the complaint as well as in her further statement she has stated that it was forcible sexual intercourse on her. No doubt, there is delay of four days in lodging the complaint, but in the statement and in the complaint the victim girl has properly explained that firstly she left the house because of threatening words of her brother as also there was threat from the present petitioner. Hence, there was delay of four days in lodging the complaint. Regarding age factor, in her complaint and in her 164 statement given before the JMFC Court, she has stated her age as 15 years. 9. It is true that medical records will not support the prosecution case, but it may not be accepted by the Court that after four days of the incident, there can be supportive medical records regarding seminal stains and also injury to the private parts, etc. Further, it is a matter for trial after recording evidence on both sides. 10. I have perused the orders passed by this Court in various cases. Having regard to the materials placed on record in this particular case, the victim girl is of 15 years old, the prosecution has placed prima facie materials to prove the involvement of the present petitioner in committing alleged offences which attracts the provisions of POCSO Act. Hence, considering all these materials, it is not a case for grant of bail. Accordingly, the petition is rejected.