Mohan Kumar M G vs State By Kanakapura Town Police Station

H.P. Sandesh, J

This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner in Crime No.104/2021 of Kanakapura Police Station,

Ramanagara, for the offences punishable under Sections 366, 376(I), 343 OF IPC and Sections 4 and 6 of POCSO Act.

Heard learned counsel for the petitioner and learned High Court Government Pleader appearing for the respondent-State

The factual matrix of the case is that the father of the victim girl lodged a complaint stating that his daughter did not turn-up from the college and

hence, suspected the role of this petitioner. Based on the complaint, at the first instance, the case came to be registered invoking Section

363 of IPC. Thereafter, this petitioner was apprehended and during the course of investigation, the prosecution also collected the material and

subjected the victim to her statement under Section 164 of Cr.P.C. She was also subjected to medical examination and the Police have also

investigated the matter and filed the charge sheet.

Learned counsel for the petitioner would contend that in the statement of the victim under Section 164 of Cr.P.C., she has not stated anything about

the sexual act and also she has categorically stated that she fell in love with him and when her parents made arrangements to perform her marriage, at

that time she went along with this petitioner. Hence, the Court has to take note of her statement under Section 164 of Cr.P.C. and also there is no

evidence for subjecting her to sexual assault. Hence, prayed for bail.

Per Contra, learned HCGP would submit that the victim girl is aged about 15 years 3 months as her date of birth is 11.06.2006. The petitioner and

the victim were subjected to medical examination. The medical examination of the victim girl is very clear that there was tear in her hymen and the

Doctor had opined that she was subjected to sexual act. Learned High Court Government Pleader further submits that though the victim has not

stated anything about sexual act in her statement under Section 164 of Cr.P.C., the Court has to take note of the medical evidence instead of oral

evidence of the victim. Thus, prayed for rejection of bail petition.

Having heard learned counsel for the petitioner and the learned High Court Government Pleader, the date of birth of the victim girl is 11.06.2006

and the incident has taken place in the month of September 2021 and at that time, she was aged about 15 years 3 months. The victim girl in her

statement under Section 164 of Cr.P.C. has not stated anything about subjecting her to sexual act, but she has stated that she fell in love with the

petitioner and when her parents tried to perform her marriage, she had informed the same to this petitioner and this petitioner only took her to his

uncle's house on 13.09.2021. Having taken note of the medical evidence available on record and the documentary evidence regarding date of birth, it

is clear that she was subjected to sexual act and the Doctor has also opined that she was subjected to sexual act. There is force in the contention of

learned High Court Government Pleader that the Court has to look into the medical evidence on record. When the girl is aged about 15 years 3 months

as on the date of the incident and when she was subjected to sexual act as per the documentary evidence, it is not a fit case to exercise the discretion

under Section 439 of Cr.P.C.

In view of the discussions made above, I pass the following:

ORDER

The criminal petition is rejected.