IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 9TH DAY OF SEPTEMBER, 2019

BEFORE

THE HON'BLE MR. JUSTICE K.N.PHANEENDRA

CRIMINAL PETITION NO. 6201 OF 2018

BETWEEN:

SALEEM PASHA @ SALIM PASHA S/O MUKTHIYAR AHMED AGED ABOUT 22 YEARS

PRESENT AND PERMANENT RESIDENT AT: C/O MUNNA, GAREBAVIPALYA NEAR KANNADA SCHOOL BOMMANHALLI BANGAORE – 560 068

ALSO RESIDENT AT: #62, N CROSS, GURAPPANPALYA NEAR LAKSHMI THEATER BANNERUGHATTA ROAD BANGALORE - 560029.

... PETITIONER

(BY SRI MOHAMMED PASHA .C – ADVOCATE FOR FRIENDS LAW ASSOCIATES AND ADVOCATES)

AND

STATE OF KARNATAKA BY SUDDAGUNTEPALYA POLICE BANGALORE REP. BY S P P HIGH COURT CAMPUS BANGALORE – 560 001.

... RESPONDENT

(BY SRI HONNAPPA, HCGP FOR RESPONDENT)

THIS CRL.P IS FILED U/S.439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN SPL. C.C. NO. 545/2018 ARISING OUT OF CR. NO. 125/2018 OF SUDDAGUNTEPALYA P0LICE STATION, BENGALURU FOR THE ALLEGED OFFENCE PUNISHABLE UNDER SECTIONS 109, 366 AND 376 OF IPC AND SECTION 5(L), 6 AND 17 OF POCSO ACT.

THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

Heard the learned counsel for the petitioner and the learned HCGP for the respondent – State. Perused the records.

2. The entire charge sheet papers reveals that the victim girl and the accused fell in love with each other and the victim girl before the police has stated in her 161 statement that the accused has persuaded her and took her to Hassan and Shimoga and they stayed from 9.4.2018 to 30.04.2018 together in the house of sister of the accused and they had sexual intercourse with each other. During the course of the investigation she was also subjected to examination before the learned Magistrate under Section 164 of Cr.P.C. There also she has stated that she stayed with the accused from 9.4.2018 to 30.04.2018 in the house of sister of the accused and she voluntarily went along with him and she has decided to marry him after attaining the age of 18 years and in that statement she has stated that she had sexual intercourse with the accused.

3. Learned counsel for the petitioner also brought to the notice of this Court that the victim girl was subjected to medical examination and before the Doctor history was given by her voluntarily and it is stated that she was aged 16 years, she loved the petitioner and they went together from 9.4.2018 to 30.4.2018 and specifically she has given the history that they were sleeping in separate rooms and there was no history of sexual contact with her. Because her mother has filed the complaint, she came back to Bengaluru.

4. Looking to the above said statements of the victim girl, they are not consistent with each other so far as sexual activity is concerned. The Doctor who is a public servant had, at the earliest point of time, recorded the statement of the victim girl and she was subjected to medical examination and there was no allegation of sexual contact. Therefore, out of the three statements made by her which one is the truthful statement has to be considered during the course of full fledged trial. Of course, Section 363 of IPC is attracted, but the same is not punishable either with death or imprisonment for life. Under these peculiar circumstances of the case, in my opinion, the petitioner has made out a ground for grant of bail. Hence, the following:

ORDER

The petition is allowed. The petitioner/accused –1 shall be released on bail in connection with Crime No.125/2018 of respondent-Suddaguntepalya Police Station, registered against him for the offence punishable under Section 109, 366, 376 of IPC and Section 6, 5(L) and 17 of POCSO Act, 2012, which is now pending before the LIV Additional City Civil and Sessions Judge (CCH-55) sitting in Child Friendly Court, Bengaluru Urban District, subject to the following conditions:-

1. The petitioner shall execute his personal bond for a sum of Rs.1,00,000/- (Rupees lakh only) with one surety for the like-sum to the satisfaction of the jurisdictional Court.

• 2. The petitioner shall not tamper with the prosecution witnesses and he shall appear before the trial Court on all future hearing dates unless exempted for any genuine reasons by the Court.
• 3. The petitioner shall not leave the jurisdiction of the trial Court without its prior permission, till the case registered against him is disposed of.

Sd/- JUDGE

DKB