MANJUNATHA Vs. STATE

JUDGEMENT

(1.) THIS petition is filed by the petitioner -accused No. under Section 439 of Cr.P.C. seeking his release on bail of the offences punishable under Section 376 of IPC R/W. Section 4, 6 and 8 of the Protection of Children from Sexual Offences Act, 2012, registered in respondent Police Station Crime No. 108/2013. Brief facts of the case as per the averments in the complaint are that on 16.5.2013, at about 7.00 a.m., the complainant T.J. Manjula came out from the house leaving her unsound daughter Vidyashree in the home and she went to cut the grass in the guava garden belonging to one Nandakumar situated behind Chowdeshwari temple. When she was cutting the grass, one Manjunatha, s/o. Narayanappa, i.e., the petitioner herein, came and spoken to her that she had come to cut the grass and she said yes and continued to cut the grass. Thereafter, at about 8.15 a.m., while her daughter Vidyashree was coming in search of her mother, in the middle of the way, the petitioner took her daughter to ditch and committed rape on her. Subsequently, Vidyashree came and told about the incident to her mother. The complainant found that there was rape on her daughter. She was attempted to contact her husband, but she could not contact due to non availability of the phone. The complainant's husband returned to home at about 7.00 p.m. and she explained everything to her husband. Since it was the full of dark night, she could not file the complaint and on the next day at about 2.30 p.m., she lodged the complaint.

(2.) I have heard the arguments of the learned Counsel appearing for the petitioner -accused and the learned High Court Government Pleader appearing for the respondent -State.

(3.) AS against this, learned High Court Government Pleader appearing for the respondent State, during the course of the arguments, submitted that on the basis of the medical report that there are no signs of recent sexual intercourse, the entire case of the prosecution cannot be taken as false. He further submitted that looking to the statements of the victim girl, complainant and the other witnesses and the averments of the complaint, there is a prima facie material placed by the prosecution. Hence, he submitted that FSL opinion is awaited. Therefore, at this stage, the accused is not entitled to be released on bail. He made the further submission that looking to the documents produced, they would go to show that the victim girl was aged 13 years as on the date of the incident. Hence, he submitted that it is a serious offence on the victim girl aged about 13 years and as the FSL report is also awaited, at this stage, the petitioner is not entitled to be released on bail. I have perused the averments made in the bail petition, FIR, complaint, the entire charge sheet material and also the order assed by the Principal Sessions Judge, Bangalore Rural District dated 2.12.2013 passed in Spl. Case No. 164/2013. With regard to the claim of the petitioner that the charge sheet was not filed within ninety days and there is a delay of two days in filing the charge sheet and he is entitled to be released on bail as per the provisions of section 167(2) of the Cr.P.C., it is rightly observed by the trial court that after filing the charge sheet for two -three months, the accused himself has not filed the bail application under Section 167(2) of Cr.P.C. Even the present application filed by the petitioner is not under Section 167(2) of the Cr.P.C., but it is under Section 439 of Cr.P.C. only. Even if the bail application is treated to be filed under section 167(2) of the Cr.P.C., while dealing with the said application with the charge sheet materials already produced in the court, the court has to see the merits of the case and also the seriousness of the offence. In the case on hand, when the bail application was considered by the trial court, the charge sheet material was already before the court. It is the case of the prosecution that when the victim girl who is mentally retarded went in search of her mother and on the way, the accused told the victim girl stating that he will show her mother, took her to the ditch, removed her clothes and then committed rape on her. It is further case of the prosecution that because of rain on the previous day, the ground was wet and looking to the spot mahazar it is mentioned that the place of occurrence was wet because of rain and there were foot marks at the same place. The materials go to show that the clothes of the victim girl were also soiled. It is no doubt true that as per the medical report, it mentioned by the Doctor that there are no recent signs of sexual intercourse. But in the report itself, the Doctor has mentioned that however final opinion is kept pending for want of FSL report. Therefore, at this stage, when the final opinion from the FSL is kept pending, it cannot be said that the petitioner is entitled to be released on bail. As I have already observed that the victim girl was aged 13 years and she was mentally retarded, looking to all other materials collected by the Investigating Officer during investigation, there is prima facie case to show the involvement of the petitioner in the commission of the alleged offence. Learned Counsel for the petitioner also relied upon the decision of this Court sitting at Circuit Bench at Gulbarga, dated 24.1.2013 in Crl. Petition No. 16163/2012. I have perused the decision. In the said decision, the facts were that the victim girl was aged in between 16 and 18 years and even the other circumstances of the said case are altogether different from the facts and circumstances involved in the case on hand. Therefore, the said decision will not come to the aid and assistance of the petitioner herein. Hence, looking to the entire materials on record, I am of the opinion that the petitioner is not entitled to be released on bail. Accordingly, the petition is rejected.