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2022 DIGILAW 384 (KAR)

Linganna v. State of Karnataka

2022-03-17

K.NATARAJAN

body2022
JUDGMENT K.Natarajan, J. - This petition is filed by the petitioner-accused under Section 439 of Cr.P.C., for granting bail in Crime No.114/2021 (Special Case No.369/2021 of Madhugiri Police Station, Tumakuru pending on the file of additional District and Sessions Judge (FTSC-1), Tumakuru for the offences punishable under Sections 448, 376aB, 506 of IPC and Section 6 of POCSO act. 2. Heard the arguments of learned counsel for the petitioner and learned High Court Government Pleader for the respondent No.1-State. Though respondent No.2 is served, but remained unrepresented. 3. The case of the prosecution is that the complainant who is the mother of the victim girl filed a complaint to the Police on 03.09.2021 alleging that the petitioner is said to have sexually assaulted her minor daughter aged about 11 years 10 months. Based upon the complaint, the Police arrested the petitioner on 04.09.2021 and he was remanded to the judicial custody. His bail petition came to be rejected during the investigation stage. Hence, he is before this Court after filing of the charge-sheet. 4. Learned counsel for the petitioner has contended that the offence under Section 6 of POCSO act is not made out. Of course it may attract Section 7 of the POCSO act for sexual assault, but not aggravated penetrative sexual assault and the medial report also does not reveal the penetrated sexual assault. The age of the petitioner is 78 years and he is suffering from Diabetes. He is in custody for more than six months. He is ready to abide by the conditions that may be imposed by this Court. Hence prayed for granting bail. 5. Learned High Court Government Pleader seriously objected the same and contended that the victim girl in her statement under Section 164 of Cr.P.C. has categorically stated about the aggravated sexual assault made by the petitioner-accused and if the petitioner is granted bail, he may tamper the prosecution witnesses and abscond from the case. Hence, prayed for dismissing the petition. 6. Having heard the arguments and on perusal of the records, especially in the statement under Section 164 of Cr.P.C., the victim girl has stated that the accused removed her clothes including under garment and kept his private part on her. She has also shown the same by signs towards both the legs and she has identified the accused. 6. Having heard the arguments and on perusal of the records, especially in the statement under Section 164 of Cr.P.C., the victim girl has stated that the accused removed her clothes including under garment and kept his private part on her. She has also shown the same by signs towards both the legs and she has identified the accused. The medical examination report especially the clinical examination report and FSL report reveals that the hymen was intact and there is no injury on the private part of the victim which suggests that there is no aggravated sexual assault on her. The FSL report and final opinion of the doctor reveals that there is no injuries found on the external genitalia and presence of spermatozoa was not found in the FSL report and also there is no seminal stains. The final opinion given on 15.11.2021 stating that there is no evidence of sexual act. 7. Learned counsel for the petitioner has contended that when there is no aggravated sexual assault, it falls only under Section 7 of the POCSO act. Looking to the facts and circumstances of the case, the medical opinion and the FSL report, I am of the view that, at this stage, it cannot be said that there is aggravated sexual assault on the victim in order to attract Section 6 of the POCSO act. Though the statement was recorded under Section 164 of Cr.P.C. there is no clarity in the statement regarding aggravated sexual assault. Investigation is completed and charge-sheet has been filed. The petitioner is in custody for more than six months and the age of the petitioner is more than 78 years. Such being the case, without expressing any opinion on the merits of the case, by imposing certain conditions, if bail is granted, no prejudice would be caused to the prosecution case. Investigation is completed and charge-sheet has been filed. The petitioner is in custody for more than six months and the age of the petitioner is more than 78 years. Such being the case, without expressing any opinion on the merits of the case, by imposing certain conditions, if bail is granted, no prejudice would be caused to the prosecution case. Hence, the following ORDER The trial Court is directed to release the petitioner- accused on bail in Crime No.114/2021 (Special Case No.369/2021 of Madhugiri Police Station, Tumakuru for the offences punishable under Sections 448, 376aB, 506 of IPC and Section 6 of POCSO act, subject to the following conditions: (i) Petitioner-accused shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakh only) with two sureties for the likesum to the satisfaction of the trial Court/Committal Court; (ii) Petitioner shall not indulge in similar offences strictly; (iii) Petitioner shall not tamper with the prosecution witnesses directly/ indirectly; and (iv) Petitioner shall take trial without causing any delay. If any of the above conditions are violated, the prosecution is at liberty to seek cancellation of this bail order.