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2022 DIGILAW 911 (KAR)

Byjith v. State of Karnataka

2022-07-15

H.P.SANDESH

body2022
JUDGMENT 1. This petition is filed under Section 439 of Cr.P.C., seeking regular bail of the petitioner/accused No. 2 in Crime No. 337/2021 (Spl.C.No. 152/2022) of Parappana Agrahara Police Station, Bengaluru City, for the offences punishable under Sections 4 & 6 of POCSO Act and Sections 366A, 376, 506 read with 34 of IPC. 2. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent/State. 3. The factual matrix of the case of the prosecution is that on 09.11.2021, accused No. 1 in his two wheeler took C.W.4 and provided Pizza and after taking the Pizza, accused No. 1 took C.W.4 instead of taking her to the house, he took her to the lonely place and not allowed C.W.4 to speak with anybody else and threatened her. At that time, accused No. 2 came with a knife and assaulted with hands. When she was praying to leave her, accused No. 1 assaulted with stick on C.W.4 and removed her clothes. In spite of she resisted, subjected her for sexual act. Thereafter, accused No. 2 i.e., the petitioner herein also in spite of resistance by the victim - C.W.4, committed the sexual act. Both of them have shared the common intention and committed an offence and threatened the victim not to disclose the same to her parents. 4. The learned counsel appearing for the petitioner would vehemently contend that the alleged incident was taken place according to the prosecution on 09.11.2021 and no complaint was given on 09.11.2021. Only the mother had given the complaint on 07.12.2021, wherein, an allegation is made against accused No. 1 and not whispered anything about the involvement of this petitioner in the complaint of the mother of the victim. The learned counsel also would vehemently contend that the additional document produced by him i.e., the statement of victim, wherein also, the victim has not stated anything about the involvement of this petitioner. The Panchanama was conducted on the very next day i.e., on 08.12.2021. On the date of recording the statement of the victim girl, nothing found in the mahazar regarding accused No. 2, subjecting her for sexual act. The learned counsel also brought to the notice of this Court that the statement of the friend of the victim girl i.e., dated 09.12.2021, wherein also, no allegation is made against accused No. 2. On the date of recording the statement of the victim girl, nothing found in the mahazar regarding accused No. 2, subjecting her for sexual act. The learned counsel also brought to the notice of this Court that the statement of the friend of the victim girl i.e., dated 09.12.2021, wherein also, no allegation is made against accused No. 2. The learned counsel also brought to the notice of this Court that the voluntary statement of the accused No. 1 dated 08.12.2021, wherein also, accused No. 1 has not stated anything about this petitioner subjecting her for sexual act. Only during the course of recording of statement of the victim before the Magistrate on 20.12.2021 for the first time, an allegation is made against this petitioner that he also subjected her for sexual act after accused No. 1 committed the sexual act and till then no such allegations are made and only it is an after thought, the present allegation is made against the petitioner herein. 5. Per contra, the learned High Court Government Pleader appearing for the State would submit that in the 164 statement, the victim girl has categorically pointed out that this petitioner also subjected her for sexual act. Learned High Court Government Pleader for the respondent-State would submit that on 08.12.2021 when the victim girl was subjected to examination, she categorically stated that accused No. 1 called this petitioner and this petitioner also subjected her for sexual act. Learned High Court Government Pleader for the respondent- State also would submit that the Test Identification Parade also conducted and the victim girl has identified this petitioner. The Court has to look into the material collected by the Investigating Officer i.e., medical records as well as the 164 statement. She has pointed out the very act of this petitioner and it is a heinous offence against the minor girl and that too by two persons i.e., accused No. 1 and accused No. 2. Hence, there is a prima facie material against the petitioner herein. 6. Having considered the submissions of the learned counsel appearing for the petitioner as well as the learned High Court Government Pleader appearing for the State and also on perusal of the material available on record, no doubt, the case of the prosecution is that the incident was taken place on 09.11.2021. 6. Having considered the submissions of the learned counsel appearing for the petitioner as well as the learned High Court Government Pleader appearing for the State and also on perusal of the material available on record, no doubt, the case of the prosecution is that the incident was taken place on 09.11.2021. At the first instance, a complaint was given by the mother of the victim girl, wherein, she has pointed out accused No. 1 committed the sexual act. The learned counsel appearing for the petitioner relied upon the statement dated 08.12.2021 allegedly given by the victim, wherein also, she has not stated anything about subjecting her for sexual act. On the very same day, the victim was taken to the hospital i.e., on 08.12.2021 and before the Doctor she makes a specific allegation against accused No. 1 and also stated before the Doctor that accused No. 1 called another person and both of them removed her dress and raped her. In 164 statement also, she reiterates that this petitioner also subjected her for sexual act and the Test Identification Parade is also conducted. In the Test Identification Parade identified this petitioner that he also subjected her for sexual act. Though the learned counsel appearing for the petitioner relies upon the victim statement dated 08.12.2021 i.e., recorded under Section 161 of Cr.P.C., but the statement was given before the Doctor while subjecting her for sexual act. On the very same day, i.e., on 08.12.2021, she discloses that another person also committed the sexual act. The Court has to give some credence to the statement made by the victim under Section 164 of Cr.P.C., before the learned Magistrate instead of 161 statement made before the Police since the contra statement found in the document. When such being the material available on record, it is not a fit case for exercising the powers under Section 439 of Cr.P.C., in favour of the petitioner since it is a heinous offence of subjecting the victim girl, who is aged about 16 years for sexual act by this petitioner as well as accused No. 1. 7. In view of the discussions made above, I pass the following: ORDER The bail petition is rejected.