Full Judgment
1. Heard the learned Counsel for the petitioner and also the learned HCGP for the State.
2. The original complainant is the father of the victim one Shekargouda. The case of the complainant is that a week before the alleged incident that the victim and his friend were proceeding to the college, the accused is said to have teased the victim and the village elders had advised him not to carry on in the same vein. It is alleged that, enraged by this the accused is said to have sexually assaulted the deceased who is aged about 16 years.
3. It is stated that on 01.02.2015 at about 3:00 p.m., the deceased was returning home after giving dried cloths to her uncle, the accused came on his motorcycle, followed her, held her by her hand and has dragged her into the shed and committed rape and when the victim screamed the villagers who were nearby gathered around the shed and on seeing the people the accused is said to have run away from the place. The jurisdictional police registered a case in Crime No.19/2015.
4. It is submitted that the complaint itself is improbable in the way it is narrated. It is alleged that the petitioner has committed the offence in the broad daylight, but there are no eyewitnesses. Consequently, he would rely on the noting by the Doctor in the course of examination of the victim to point out that the case of the prosecution is contrary to the admissions of the victim before the Doctor. He would refer to the noting at Sl.No.12(f), where to the specific question by the doctor is that she uttered any cries. She has stated that she was scared and did not cry out. The petitioner further points out that the complaint does not disclose that the petitioner was holding any deadly weapons or threatened the victim with any such weapons. That being so, he would submit that there was no impediment for the victim to cry out. As per the complaint, it is alleged that the accused dragged and put cloth in her mouth after taking into the shed. So nothing prevented her for crying out while being dragged into the shed. He would also submit that the statement of the owner of the alleged shed is not recorded and also the statement of the so called villagers, who surrounded the place at the time of incident is not recorded. He would submit that in the light of the above facts, prima-facie it demonstrates that the complaint is made for other extraneous reasons. He submits that the complaint is a result of political rivalry. Therefore, he prays that the petition be allowed as the petitioner is innocent and the earning member of the family and bears good conduct.
4. Per contra, the learned Government Advocate would submit that the petitioner has committed a heinous offence of sexual assault on a minor girl and that the public have seen him while running away from the spot. He would also point out the medical opinion, which states that rape might have occurred ?. The medical opinion is placed before this Court. It is observed by the Doctor that her hymen is not intact and tear present and seminal stain was detected in item No.5. Seminal stain was detected in the skirt of the victim girl. It is disturbing that in the opinion that has been given by an expert, nothing conclusive is found. The expert is called upon to give a conclusive finding and not a ground for raising further question. The opinion is inconclusive. In the above facts and circumstances, the petitioner is entitled for the relief as prayed for.
5. The prosecution is heavily relying on the opinion furnished by the F.S.L. and the Doctor who examined the victim. A perusal of the examination report shows that it is in a printed format and is a Proforma prescribed by the State in the Course of examination of the victim on sexual offence/alleged rape and at Sl.No.7 there is query, which reads as follows:-
Patient's statement, whether she is a virgin:
In reply to that the victim is alleged to have stated that she is a virgin and as stated earlier the entries at Sl.Nos.12 f, g, h are relevant. To a query at Sl.No.12f, she has stated that she was terrified and hence she did not cry out and there are no answers with regard to the Sl.Nos.12g and h. The absence of any details with regard to 12g seems significant. The accused is also an Income Tax Assessee and accused is assigned a pan number.
The material placed on record being the medical examination report and the F.S.L. report are not suggestive of actual commission of the offence. In fact the medical examination report, is filled up based on the statements made by the victim and this also does not disclose the offence. The statement before the Doctor during the examination is directly in contradiction to the statement made in the statement of objection, wherein it is alleged that she cried out and hearing the cries, the villages surrounded her.
In the above facts and circumstances, this Court is of the opinion that the petitioner is entitled to relief as prayed for. Accordingly, the petition is allowed:-
i) The petitioner is directed to be enlarged on bail, subject to executing a bond for a sum of Rs.50,00/- and furnishing two sureties for the likesum to the satisfaction of the jurisdictional Court.
ii) The petitioner shall not leave the jurisdiction of this Court without the prior permission of the trial Court.
iii) The petitioner shall not tamper with the evidences.
iv) The petitioner shall attend the Court hearings on all dates without fail.
v) In the event the petitioner violates the above conditions, the prosecution is at liberty to approach this Court for the revocation of this order.
vi) The observation in the above case are made for the limited purpose of considering the bail application and the trial Court shall not be influenced by any of the above observation and shall independently consider and dispose of the case on merits.
vii) Ordered accordingly.