In the High Court of Karnataka Dharwad Bench Dated This the 26 Th Day of June, 2014

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 26 TH DAY OF JUNE, 2014

BEFORE

THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA

CRIMINAL PETITION No.101008/2014

BETWEEN:

MAHESH SHIVAJI PARANDEKAR AGE: 32 YEARS, OCC: TEACHER R/AT: NEAR GOKAK GOVERNMENT HOSPITAL GOKAK, DIST: BELGAUM ... PETITIONER

(BY SRI. M. B. GUNDAWADE FOR SRI. PRAKASH ANDANIMATH, ADV.)

AND:

STATE OF KARNATAKA THROUGH GOKAK TOWN POLICE R/BY S P P KARNATAKA HIGH COURT BENCH, DHARWAD ... RESPONDENT (SRI. VIJAYAKUMAR MAJAGE, HCGP) ---

THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C. SEEKING TO ENLARGE THE PETITIONER ON BAIL IN GOKAK TOWN P.S. CRIME NO.306/2013 FOR THE ALLEGED OFFENCES U/S 366(A), 344, 506, 376 R/W SEC. 34 OF IPC & 4 & 12 OF THE PCSO ACT. 2

THIS 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 High Court Government Pleader for the respondent –

State. Perused the records.

2. The Gokak Circle Inspector of Police submitted a charge sheet against the petitioner herein and others in

Crime No.306/2013 for the offences punishable under

Sections 366(A), 344, 506, 376 R/w. Section 34 of IPC and also under Sections 4 and 17 of the Protection of Children from Sexual Offences Act, 2013 (hereinafter referred as the

‘POCSO Act’, for short).

3. As per the charge sheet allegations, the petitioner herein was working as a teacher at a Taekwondo Training

School. The victim girl by name Nishi was studying in KLE school at Gokak in VIII Standard. She was often participating in Taekwondo training and she used to go to 3

different places along with her classmates to attend

Taekwondo sports. It is alleged in this context that, the petitioner developed some intimacy with the said girl and by taking advantage of the said intimacy, they started talking with each other over mobile phones. It is also stated that, he provided a mobile phone to the said girl. They used to exchange messages and phone calls with each other.

In this background, it is specifically alleged that, on

13.08.2013, in the night hours at 12.30 pm, the petitioner herein threatened the said girl to come out from the house in order to go along with him. Accordingly, due to the said threat, she came out from the house and the petitioner took her to different places in an Indica car bearing No.KA 35-

5752. It is alleged in the charge sheet papers that, the petitioner took the victim girl to Vishalgad and stayed there from 13.08.2013 to 16.08.2013. Thereafter, they went to

Pune, to Mahabaleshwar, to Kolhapur and Aurangabad and then returned to Puna. While they were in the Pune bus stand on 28.08.2013, they were caught by the police. 4

On 23.08.2013 itself, her father by name Nitin Jain lodged a missing complaint suspecting the conduct of the petitioner herein. After arrest of the accused and also securing the presence of the said girl, her statement was recorded by the police. In fact, she reiterated the above said allegations.

4. It is specifically alleged in the charge sheet papers and the statement of the victim that the petitioner has had forcible sexual intercourse with her. The records also disclose that, the police have collected the material to show that the petitioner and the victim girl stayed at several places and in fact the police visited the hotels and other lodges where they stayed. The police have also collected the medical certificate of the victim girl for the purpose of showing that she was subjected to sexual intercourse and also for the purpose of ascertaining her age.

5. On the basis of the above materials, the learned

Counsel for the petitioner contended that, the medical certificate discloses that she was aged below 18 years, but 5

the specific age has not been given. Therefore, he contends that she is almost in the verge of attaining the age of majority. The learned Counsel also contends that the circumstances squarely discloses that the petitioner and the victim girl were in talking terms with each other with all freeness and therefore, they developed intimacy with each other; the victim girl having jumped the compound wall of her house, joined the petitioner on that particular day and went along with him voluntarily; by her conduct, it cannot be said that the petitioner has committed any offence as alleged against him. Secondly, the learned Counsel contended that the age of the victim girl is nearing the age of 18 years. The consent of said girl plays a dominant role in this particular case. Further added to that, the learned Counsel strenuously contends that the petitioner was arrested on

28.08.2013 and since then, he has been in judicial custody.

He is unemployed, eking his livelihood by doing some paltry work. Therefore, looking to the above said circumstances, he pleads for grant of bail. 6

6. The learned High Court Government Pleader, very strongly countered the arguments of the learned Counsel for the petitioner and contended that the victim girl is aged between 13 to 14 years as on the date of the offence. The petitioner, who was the teacher in Taekwondo school was in a position to persuade the victim girl; he took advantage of the situation and the age of the girl, took her to different places and had forcible sexual intercourse with her, knowing fully well that she was a minor. The police have collected sufficient materials to show that there was threat to the said girl and because of the threat and persuasion by the petitioner, she must have accompanied the petitioner. The circumstances clearly goes to show that, it is a serious offence committed under the POCSO Act. He contends that, if the accused is released on bail, it would send a wrong message to the society and encourage the like minded people to commit such offences with assurance that they would get bail from the Courts. Therefore, he contends that the petition is liable to be dismissed. 7

7. Having heard the above said arguments, on careful perusal of the statement of the victim girl, she has categorically stated that she never consented for any sexual activity though having went along with the petitioner/accused. At this stage, it is shown to the Court that she is below the age of 18 years considering the medical report and other materials placed before the Court. The certificate issued by the Principal, KLE Society confirming the date of birth of the victim girl shows her date of birth as

06.05.2000 and accordingly she is 14 years of age. Though in the medical report produced before the Court, as rightly contended by the learned Counsel, the age of the victim girl is shown as below 18 years, but the doctor has not properly opined whether she is nearing the age of 18 years or in the verge of attaining the age of majority. Below 18 years gives an ambiguous information to the Court. It can be less than

10 years, more than 10 years or below the age of 18 years.

However, other materials placed before the Court such as school certificate, coupled with the statements of the father 8

and mother of the victim girl, including the victim girl corroborate the document issued by the Principal, KLE

School that, she is aged 14 years as on the date of the alleged incident. The medical certificate also discloses that her hymen was ruptured and supports the statement of the victim girl. There was abrasion found in the introitus of vagina and she was subjected to sexual activity is prima facie visible from the said documents. The history noted in the medical certificate also shows that, as on the date of her examination, she has given the history that there was forcibly intercourse on her on 27.08.2013 at 7.30 pm by the petitioner herein. The materials collected by the police at this stage shows that the victim girl and the petitioners have stayed in several places. At this stage, the consent of the victim girl, in my opinion, cannot be considered because that has to be proved during the course of a full dressed trial. At this stage, the materials placed before the Court shows that she was below the age of 18 years i.e., she was aged 14 years as on the date of incident, which shows that the consent, 9

even if any by the said girl, is not of any avail to the petitioner. POCSO Act came into force for the protection of the children from sexual abuse by the persons who are in the habit of persuading the minor children for their sexual lust.

If the accused persons are let alone in such serious offences, when the material produced before the Court shows that the victims were tender aged, it will definitely send a wrong message to the Society.

8. Under the circumstances, I am of the opinion, the petitioner has not made out any reasonable ground for grant of bail. On the other hand, the prosecution has shown the prima facie materials against the petitioner. Hence, the petition deserves to be dismissed in view of the above observations.

Accordingly, the petition is dismissed .

Any observations made in this particular order is only for the purpose of disposal of this petition and it shall not 10

persuade the trial Court in any manner, at the time of considering the matter on merits.

Sd/- JUDGE gab/-