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Judgment
Rajendra Badamikar, J
This petition is filed by the petitioner/accused No.2 under Section 439 of Cr.P.C. for enlarging him on bail in SC No.346/2022 pending on the file of Additional District and Sessions Judge, FTSC – I, Mysore.
The allegations of the prosecution disclose that, on 14.05.2022 statement of the victim was recorded by WPC of Bettadapura Police Station, wherein she alleged that she was in love with accused No.1 and thereafter, accused No.1 under the guise of marriage, took her to the forest near Bettadapura Bridge and committed sexual assault on her. It is also alleged that subsequently on 5 to 6 times, they had physical relationship under the guise of marriage and when she was pregnant, she reported the matter to accused No.1 and thereafter, accused No.1 stopped entertaining her. Then the matter was brought to the notice of her mother and later on the Superintendent has provided her shelter in Balakiya Balamandira, Mysore and her 164 Cr.P.C statement also came to be recorded. A crime was registered against accused No.1 and subsequently, charge sheet came to be filed against accused No.1 for the offences punishable under Section 376 (2)(J)(n) of IPC and Section 4, 5(L) and 6 of POCSO Act, 2012. The accused No.1 was arrested and subsequently, he was enlarged on bail.
When the matter was posted for recording the evidence, the victim has given her evidence as against the present petitioner by giving a go-by to her complaint allegations as against accused No.1. Hence, an application under Section 319 of Cr.P.C. was filed by the prosecution which came to be allowed by learned Special Judge. Then process came to be issued against the present petitioner arraying him as accused No.2 and he surrendered before the Court and he was remanded to the Judicial custody. Then he moved a Regular Bail petition before the learned Special Judge and learned Special Judge has rejected the bail petition. Hence, the petitioner is before this Court.
Heard the arguments advanced by learned counsel for the petitioner and learned HCGP. Perused the reports.
Respondent No.2 though served, is unrepresented.
Learned counsel for the petitioner submits that the victim is said to have completed II PUC and in the entire complaint and 164 Cr.P.C statement, the name of the petitioner was not referred and the complaint allegations were directed against accused No.1. It is also asserted that accused No.1 is enlarged on bail and he is married to the victim girl and now they are residing together and while recording the evidence, for the first time, the present petitioner was implicated by the victim. He would contend that it is an afterthought story only in order to save accused No.1 and hence, he would seek for admitting the petitioner on bail.
Per contra, learned HCGP seriously opposes the bail petition contending that statement of the victim discloses that the petitioner has committed sexual assault on the victim girl and hence, sought for rejection of the bail petition.
Having heard the arguments and perusing the records, it is evident that initially the complaint was directed against accused No.1 alone. The entire charge sheet material does not whisper any allegations against the present petitioner/accused No.2. Even the 164 Cr.P.C statement of the victim is also silent and for the first time in the evidence which was recorded on 26.06.2023, the victim has implicated the present petitioner/ accused No.2 and she has tried to deviate from her original statement. Her evidence disclose that by the time she developed the relationship with accused No.1. she was already pregnant of three months, as a result of her physical relationship with the present petitioner/ accused No.2. But the complaint allegations and her 164 Cr.P.C statement disclose that she had a regular physical relationship with accused No.1 and they had long standing relationship and only after she became pregnant, accused No.1 discontinued his relationship with this victim. Hence, it is evident that the victim is changing her stands as per her convenience. Even otherwise the records disclose that the prosecution has not produced any documents regarding exact proof of age. Further, it is submitted that accused No.1 is already on bail and the victim is already married with accused No.1 and they are residing together.
Considering these facts and circumstances and considering the conduct of the victim, I do not find any impediment for admitting the petitioner/ accused No.2 on bail. The other apprehensions raised by learned HCGP can be meted by imposing certain conditions. Hence, the petition needs to be allowed and accordingly, I proceed to pass the following:
ORDER
(i) Petition is allowed.
(ii) The petitioner/Accused No.2 is directed to be enlarged on bail in Crime No.93/2022 of Bettadapura Police Station, registered for the offence punishable under Section 376 (2)(J)(n) of IPC and Section 4, 5(L) and 6 of POCSO Act, 2012, which is pending on the file of the Additional District and Sessions Judge, FTSC –I, Mysore in SC No.346/2022, on his executing a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with one surety for the like-sum to the satisfaction of the trial Court, subject to the following conditions that-
(i) He shall not indulge in any of the criminal activities.
(ii) He shall not tamper the prosecution witnesses either directly or indirectly.
(iii) He shall not leave the jurisdiction of the Court, without prior permission
(iv) He shall attend the Court on all the dates of hearing, unless he is exempted by a specific order.
(v) He shall co-operate for speedy disposal of the matter.