1. This criminal petition is filed by the accused under Section 439 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’, for short) for granting bail in respect of Crime No.78/2021 registered by Dandeli Town Police for the offence punishable under Section 376(AB) of Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’, for short) and Sections 4 and 8 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act’, for short)
2. Heard the arguments of the learned counsel for petitioner and learned High Court Government Pleader for respondent.
3. The case of the prosecution is that one Firdos, the mother of the victim girl filed a complaint before the police on 17.0.2021 alleging that herself and her husband along with daughters are residing in Dandeli. On 16.09.2021, they were celebrating the birthday of her elder daughter who was aged 14 years. While celebrating the birthday, the victim girl complained that she is getting pain in her private part. Therefore, the complainant took the victim to bathroom and washed her private part. Against she complained paining in her private part. Then the complainant applied some ointment. After celebrating the birthday of her elder daughter, they slept. At 11.45 p.m., the victim girl again complained paining in her private part. On enquiry, the victim girl stated that her neighbour Dada put his finger in her private part and she shown her private part and it was bleeding. Thereafter the complainant taken the victim girl to the hospital and treated and filed the complaint. After registering the complaint, the police arrested the accused on 17.09.2021 and he was remanded to judicial custody. The petitioner approached the District Court seeking bail, which came to be rejected. Hence, he is before this Court.
4. Learned counsel for petitioner contended that the petitioner is innocent of the offences and he has been falsely implicated in respect of a civil dispute between them. Even otherwise, there is no medical evidence to show that he has committed sexual assault on the victim girl. The investigation is completed and charge sheet is filed. The age of the petitioner is 74 years and he is in judicial custody for more than 8 months. The petitioner is ready to abide by any conditions. Learned counsel relied on a judgment of this Court in Fakirappa Galeppa Anawal and another Vs. The State of Karnataka by through Katakol Police Station, Dharwad reported in 2014 (2) KCCR 1138 [LQ/KarHC/2014/625] and submitted that in a similar situation where the victim girl was aged 4 years, the accused were granted bail by this Court. Hence, he prayed for grant of bail.
5. Learned High Court Government Pleader seriously objected for grant of bail and contended that the petitioner has sexually assaulted the minor victim girl aged below 4 years. The medical report shows that there was injury in the private part of the victim girl. The statement under Section 164 of Cr.P.C. also reveals the same. If he is granted bail, he would tamper the evidence of the prosecution. Hence, she prayed for dismissal of the petition.
6. Having heard the arguments of the learned counsel for petitioner and learned High Court Government Pleader, perused the records.
7. On perusal of the records, it is revealed that admittedly, the victim girl was aged 3 years 8 months and she complained about pain in her private part. Later on enquiry, the complainant came to know that the petitioner said to have inserted his finger into the private part of the victim girl. He has also done the same twice and there was bleeding in the private part of the victim girl. Subsequently, the complaint came to be filed. After completion of investigation, charge sheet came to be filed. The statement under Section 164 of Cr.P.C. also reveals that the child shown her private part where the accused inserted his finger. The investigation is completed and charge sheet is filed. Considering that the petitioner/accused is aged 74 years and he is languishing in jail for almost 8 months, if the bail is granted by imposing stringent conditions, no prejudice will be caused to the case of the prosecution. Accordingly, I pass the following order:
8. The criminal petition is allowed. The Trial Court is directed to release the petitioner/accused on bail in Crime No.78/2021 registered by Dandeli Town Police for the offence punishable under Section 376(AB) of IPC and Sections 4 and 8 of POCSO Act subject to the following conditions:
"i. The petitioner shall execute a personal bond for a sum of `2,00,000/- (Rupees Two lakh only) with two sureties for the likesum to the satisfaction of the Trial Court.
ii. The petitioner shall not hamper/tamper the prosecution witnesses directly or indirectly.
iii. The petitioner shall not indulge in similar offences.
iv. The petitioner shall not leave the jurisdiction of this court without prior permission of the Trial Court.
v. The petitioner shall take the trial without causing any delay."
9. If any of the conditions is violated, then the prosecution is at liberty to move an application for cancellation of bail.
