At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE H.P. SANDESH
For the Petitioner: B. Lethif, Advocate. For the Respondent: K. Nageshwarappa, HCGP.
(Prayer: This Criminal Petition is filed Under Section 439 of Cr.P.C. praying this Court to enlarge the petitioner on Bail in Cr.No.54/2019 registered by Narasimharaja Police Station, Mysuru for the offences punishable Under Sections 376-Ab and 506 of IPC read with Sec.5(L), 5(M) and 6 POCSO Act, 2012.)
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1. This petition is filed under Section 439 of Cr.P.C seeking regular bail of Accused No.1/Petitioner in Crime No.54/2019 for the offences punishable under Sections 376AB and 506 of IPC read with Section 5(L) and 5(M) and Section 6 of Protection of Children from Sexual Offences Act, 2012.
2. The factual matrix of the case is that one Smt.Bhagyamma, who is the mother of victim Aishwarya, in her complaint alleged that her daughter Aishwarya and her friend Pooja came to house at about 10.30 p.m. and at that time they were under depression. On enquiry, they revealed that when both of them were playing in the park, a person by name Jai Shiva Mahadeva, who is the petitioner herein took them to Subhash Nagar Park with a pretext of giving sweets. He took them to a terrain place, removed their lower garments, put his fingers to the private parts of the victim girls and pressed their breast. It is also alleged that this petitioner has placed his private part in the mouth of the one victim girl and also pressed the breast of another girl. It is also alleged that the petitioner herein tried to put his private part to the anus of the girl and as a result, the victim suffered pain. It is also alleged that he put his penis to the mouth of a girl and at that point of time, a person came to the spot and assaulted the petitioner. Thereafter, he took the victim girls in his bike on the pretext that he would drop them to their house. But on the way, the person Kaiser told the victim girls that he know what they have done with said Mahadev and asked them to do the same with him. He also put his penis to the mouth of the victim girls and pressed their breast. It is further alleged that they dropped the victim girls near the Shankar Nursing Home. After revealing the said incident to the mother, she has lodged the complaint and case has been registered against those persons for the above said offences.
3. Learned counsel for the petitioner in his arguments vehemently contended that the petitioner has been falsely implicated in the case. The police have already filed the chargesheet and there is no medical evidence to prove that the victims were subjected to sexual assault. There is only an allegation of molestation by the petitioner and the same does not attract the ingredients of Section 376 of IPC or Sections 5 and 6 of POCSO Act. There is no evidence of vaginal penetration and injury on the victim girls. The hymen was intact. It is contended that there was a continuous sexual assault on the victim girls but there was no corroboration to that effect.
4. The other contention of the learned counsel for the petitioner is that the petitioner's wife is suffering from cancer and she has undergone chemotheraphy. She is in the last stage of cancer and the presence of the petitioner is necessary to look after his wife to recover from the said disease. Since he is also suffering from heart ailments, he may be enlarged on bail on medical grounds.
5. Learned High Court Government Pleader appearing for the State would contend that the petitioner has committed an heinous offence that too against the minor children, who are aged about 10 years and medical evidence also supports that the minor victim girls are subjected to sexual assault. If the petitioner is enlarged on bail, the very object of POCSO Act would be defeated.
6. Having heard the arguments of the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the State, this Court has to examine as to whether the petitioner has made out a ground to enlarge the petitioner on bail exercising powers under Section 439 of Cr.P.C.
7. Having considered the factual aspects of the case and also the gravity of the offence, it is clear that the two minor girls were subjected to sexual act by the petitioner. The incident was taken place in the evening of the very same day. When the children returned to the house of the complainant, they revealed about the incident. The offences alleged against the petitioner are heinous in nature and the fact that the victims are minor girls is not in dispute. There is a presumption under Sections 29 and 30 of POCSO Act.
8. It is the contention of the learned counsel for the petitioner that there is no any medical evidence in support of the prosecution. Learned counsel also contended that the evidence of the victim girls are recorded but he did not dispute the fact that both of them have supported the case of the prosecution. This Court also cannot appreciate the merit while considering the bail application, but can only arrive at the conclusion as to whether there is a prima facie case or not. The other contention that there is no evidence of penetration, cannot be adjudged at this juncture and the same has to be tested in trial. The penetration is immaterial while considering the sexual assault against the minor girls.
9. Having considered the factual aspects and allegations made in the complaint, I am of the opinion that it is not a fit case to exercise powers
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under Section 439 of Cr.P.C., since two victim girls were subjected to sexual assault by the petitioner. The other ground urged in the bail petition that wife of the petitioner is suffering from cancer, cannot be a ground to enlarge the petitioner on bail, when the heinous offence has been alleged against him. The very contention that his presence is required to look after his wife is not a ground for bail, when the serious charges are leveled against this petitioner. Hence, it is not a fit case to exercise the discretion in favour of the petitioner. Accordingly, the petition is rejected.