(Prayer: This Petition is filed under Section 439 of CR.P.C. praying to enlarge the petitioner on bail in crime No.29/2022 registered by Shanivarasanthe Police Station, Kodagu District for the offence p/u/s 376 and 506 of IPC, pendng on the file of Senior Ciivl Judge and JMFC, Somwarpet, Kodagu District.)
1. Heard learned counsel for the petitioner and learned High Court Government Pleader.
2. Factual matrix of the case of the prosecution is that victim had given complaint on 28.04.2022 narrating the fact that this petitioner committed sexual act against her wish on 07.01.2022 and also he threatened not to reveal the same to anybody or otherwise he is going to pour acid on her and hence she did not gave any complaint but he repeated the said act and also he use to make phone calls and threaten her. That on 30.03.2022 at about 8.30 p.m. when she was feeding cattle in the cow shed, he came and suddenly tried to commit sexual act and when she screamed, he assaulted her and her daughter rushed to the spot and having noticed the same, he left the place. When the daughter tried to tell the same to her husband she was consoled her not to reveal the same and she will reveal the same. But immediately she made an attempt to commit suicide by consuming poison and immediately she was shifted to hospital and she also gave statement before the Magistrate on 05.04.2022 and complaint was lodged on 28.04.2022.
3. Learned counsel appearing for the petitioner would submit that earlier petition was got dismissed since it has become infructuous in view of arresting of the petitioner and submits that investigation is completed and charge sheet is also filed. He submits that in 164 statement she reiterates the contents of the complaint but her daughter also examined before the Court and she also gave statement before the Magistrate. But in 161 statement she has stated that the incident has taken place on 07.01.2022 and not on 30.03.2022 and also in her 164 statement date is mentioned as 30.03.2022 and there are contradictions in the statement of the daughter. Counsel also submits that earlier husband has given the complaint and FIR was registered for the offences under Sections 324, 504 and 506 of IPC and in the subsequent complaint an improvement is made wherein he makes an allegation that as there was previous ill-will between the complainant and the accused, the incident has taken place and there are contradictions in the complaint given by husband as well as victim and also the statement of their daughter. He further submits that the petitioner is in custody and there is no need of further custody and hence, he may be enlarged on bail.
4. Per contra, learned High Court Government Pleader appearing for the State would submit that the husband has given the complaint earlier and he was not aware of the act of the petitioner and that he has specifically mentioned the date as 07.01.2022 when the petitioner committed the offence of sexual assault and there are no discrepancies in mentioning the date by the daughter of the complainant and the true fact is that the petitioner repeatedly made attempts to have sexual assault with the petitioner. Hence, the complainant took the extreme step of committing suicide and it is only thereafter that the husband came to know of the earlier sexual assault of the petitioner and hence in the earlier complaint, there is no mention of subjecting the complainant to sexual assault.
5. On perusal of the records, it is seen that the victim is a married lady and the allegation is that the accused subjected the complainant to sexual assault on 07.01.2022 but then no complaint was lodged. Again on 30.03.2022, an allegation is made that an attempt was made by the petitioner and when the daughter comes to know about the same, he ran away from the place of incident and the complainant consumed poison and thereafter she was taken to the hospital and the husband has lodged the complaint. No doubt, an allegation is made against the petitioner by filing a complaint on 31.03.2022 by the husband but again after 28 days, one more complaint is given by the complainant wherein she has stated that she was subjected to sexual assault. No doubt there are discrepancies in mentioning the dates of the incident wherein the daughter says that the incident has taken place on 07.01.2022 but her mother/victim says it was 30.03.2022 and also in 164 statement, the daughter has given the date as 07.01.2022. Hence, it can be seen that there are material contradictions and also taking note of the contents of the earlier complaint given by husband and also the subsequent contents of the later complaint, the sexual assault can be proved only based on the medical examination and no medical evidence is produced before the Court. When such being the case, this Court is of the opinion that since the investigation has already been completed and charge-sheet is filed, there is no need of the petitioner being in custody and he may be enlarged on bail and allegation of subjecting her to sexual act is a matter of trial.
6. In view of the above discussions, I pass the following:
The petition is allowed. Consequently, the petitioner/accused No shall be released on bail in connection with Crime No.29/2022 of Shanivarasanthe Police Station, Somwarpet Sub-Division, registered for the offences punishable under Sections 376 and 506 of IPC, subject to the following conditions:
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> (i) The petitioner shall execute his personal bond for a sum of Rs.2,00,000/- (Rupees two lakhs only) with two sureties for the like-sum to the satisfaction of the jurisdictional Court. (ii) The petitioner shall not indulge in tampering the prosecution witnesses. (iii) The petitioner shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the Court for any genuine cause. (iv) The petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Court till the case registered against him is disposed of.