VINOD KUMAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS is the petition filed by the petitioner -accused No. 1 under Section 439 of Cr.P.C. seeking his release on bail for the offences punishable under Sections 506, 376 of IPC registered by the respondent -police in Crime No. 102/2013 and now pending in S.C. No. 75/2013.

(2.) THE brief facts of the prosecution case as per the averment in the complaint that on 16 -03 -2013 in the night CW -2 left CW's -1, 3, 4 and his daughter Bhavyashree in his residence and had been to see the Jathra and Karata Festival at Avani village. While CW -1 locked the door and sleeping inside the house, the accused knew about CW -1 alone inside the house, at about 2 'O' clock in the mid night came near the house of CW -1 and stepped to the terrace and jumped and came inside the house and tried to rape CW -1, while she was in sleeping mood. When CW -1 was awake and protested for the same, the accused forcibly had intercourse with her against her will and wish and committed rape on her. When CW -1 shouted, CWs' -3 and 4 got up and at that time accused brought kerosene can from the kitchen and threatened CWs' -1, 3 and 4 for having shouted to pour kerosene and to burn them. At that time, CWs' - 5, 6, and 7 knocked the door and accused escaped from the same path On the basis of the said complaint, case has been registered against the petitioner.

(3.) LEARNED counsel for the petitioner during the course of his argument submitted that there is no prima -facie material placed by the prosecution to show the involvement of the present petitioner in the commission of the alleged offence under Section 376 of IPC. The counsel made the submission that though in the complaint it is mentioned that accused committed sexual intercourse on her against her will, but perusing her statement she has given before the Magistrate Court under Section 164 of Cr.P.C. it is all together different and hence he submitted that the statement of witnesses will not go to show the prima -facie material against the petitioner. He also submitted that the children of the complaint are not eye witnesses, even if their statement is taken to be true what they have stated is when they saw the petitioner, he was on banian and under wear and he was having kerosene oil can in his hand. Hence, counsel submitted that the petitioner is ready to abide by any reasonable conditions to be imposed by this Court. The investigation of the case is completed and charge sheet has been filed. In support of his contention learned counsel for the petitioner relied upon the decisions of the Allahabad High Court reported in 2008(3) Crimes 469 and Hon'ble Supreme Court reported in (2010) 2 SCC (Cri.) 695. The learned counsel also relied upon the order passed by this Court in Crl. P. Nos. 4448/2012 c/w. 4162/2012, 4424/2012 dated 17 -09 -2012 and also another order passed in Crl. P. No. 6403/2012 dated 17 -09 -2012.