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2020 DIGILAW 1947 (KAR)

Blaze v. State Of Karnataka

2020-09-30

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - This petition is filed by the accused under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Special Case No.10/2020 on the file of the Additional District and Sessions Judge, FTSC-1, U.K., Karwar, for the offence punishable under Sections 354D, 363, 448 and 376 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act', for brevity). 2. It is the case of the prosecution that the victim has filed the complaint on 24.12.2019. In the said complaint, it is alleged that she is aged 13 years 8 months and she is studying in 8th standard at Siddivinayaka School at Siddapur and her date of birth is 04.04.2006. It is further stated that since June 2018 she is traveling to school by bus. In the month of November, when she was returning from school, the petitioner smiled at her and thereafter regularly the petitioner used to stand at the bus stop and had conversation. The petitioner introduced himself and the petitioner asked for the mobile number of the complainant. Both have exchanged the mobile numbers. It is further alleged that after completion of school hours, the petitioner had sent messages and called regularly. Due to ill-health of the sister of the victim, her parents were at Manipal. The parents of the complainant/victim smelt the relationship in the month of January last week and they have warned but he continued with messages and calls. The petitioner regularly met the complainant at bus stop and he used to give chocolates. When the complainant fell sick in the month of March, the petitioner dropped her to her house. It is further alleged that the petitioner had phone called the complainant asking her to permit him to stay at her house and the complainant refused but later she has agreed and on 21.12.2019 at about 1.00 am, the petitioner had come to the house of the complainant and the complainant escorted the petitioner to her bed room at upstairs. The petitioner removed the clothes of the complainant and had sexual intercourse twice. The petitioner left the house at 4.00 am. The petitioner removed the clothes of the complainant and had sexual intercourse twice. The petitioner left the house at 4.00 am. On 23.12.2019, the complainant had been to school and on the same day the petitioner had phone called the complainant asking her to permit him to stay in her house. The complainant allowed the petitioner to come inside the house by opening the door, escorted to her room and had sexual intercourse twice. The petitioner left the house of the complainant at 4.00 am and while leaving, the village people have caught hold of the petitioner and produced before the police. The said complaint came to be registered in Crime No.204/2019 in Siddapur Police Station for the offence punishable under Sections 354D, 363, 448 and 376 of IPC and Sections 4 and 6 of POCSO Act. The petitioner was taken into judicial custody on 24.12.2019. The Investigating Officer has filed charge sheet and the case is now pending in Special Case No.10/2020. The petitioner filed bail application and the same came to be rejected by the learned Additional District and Sessions Judge-FTSC-I, U.K., Karwar by order dated 02.07.2020. Therefore, the petitioner is before this Court seeking bail. 3. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State. 4. It is the contention of the learned counsel for the petitioner that the incident has taken place on 24.12.2019 during night hours and the complaint came to be filed at 5.00 pm and therefore there is delay in filing the complaint. It is his further submission that on looking to the complaint, the victim herself has escorted the petitioner to her room on both the days and had consented for the sexual intercourse. It is his further submission that the victim had a SIM as per her further statement and the same has been destroyed by her parents. It is her further submission that the petitioner is aged 20 years and if he is detained in judicial custody, he will come in contact with hardened criminals. It is his further submission that charge sheet has been filed and the petitioner is no more required for custodial interrogation. With this, he prayed for allowing the petition. 5. Per contra, learned High Court Government Pleader submitted that the victim is minor aged 13 years 8 months as on the date of the incident. It is his further submission that charge sheet has been filed and the petitioner is no more required for custodial interrogation. With this, he prayed for allowing the petition. 5. Per contra, learned High Court Government Pleader submitted that the victim is minor aged 13 years 8 months as on the date of the incident. It is her further submission that consent of a minor is not a consent. It is her further submission that the persons in the locality have caught hold of the petitioner on 24.12.2019 at 4.00 am when he came out of the house of the victim. It is her further submission that the medical certificate of the victim reveal that there is fresh rupture of hymen and the Doctor has opined that the victim has undergone recent sexual intercourse. It is her further submission that there is prima facie material against the petitioner for the offences alleged. It is her further submission that if the petitioner is granted bail, he will threaten the complainant and other prosecution witnesses and flee from justice. With this, she prayed to dismiss the petition. 6. Having regard to the submission made by the learned counsel for the petitioner and the learned High Court Government Pleader, this Court has gone through the charge sheet records. 7. As per the charge sheet records, the age of the complainant/victim is 13 years 8 months as on the date of the incident. On looking to the averments in the complaint, the victim has given consent for the petitioner/accused to come to her house and to have sexual intercourse with her. The petitioner had sexual intercourse with the victim on 2 dates i.e., on 21.12.2019 and 24.12.2019. The victim is a minor and consent by a minor is no consent in the eye of law. The medical examination report of the victim reveal that there is fresh rupture of hymen and the Doctor, who examined the victim, has opined that the victim has undergone recent sexual intercourse. The charge sheet material, prima facie, show that the petitioner had sexual intercourse with the minor girl in her house when her parents were not in station. 8. The petitioner has not made out any ground for grant of bail. Hence, the petition is rejected.