K Basavaraj S/O Late Malleshappa vs The State Of Karnataka
2021 Latest Caselaw 3114 Kant

                           -1-



            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 05TH DAY OF AUGUST, 2021

                         BEFORE

      THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

           CRIMINAL APPEAL NO.100163 OF 2021
BETWEEN
K BASAVARAJ S/O LATE MALLESHAPPA
AGE: 25 YEARS, OCC: WORKMEN,
R/O: ORVAYI GUTTIGANUR VILLALGE,
KURUGODU TALUK, BALLARI DISTRICT.
                                              ...APPELLANT
(BY SRI. MRUTYUNJAYA S.HALLIKERI, ADVOCATE)

AND
1.    THE STATE OF KARNATAKA
      THROUGH KAMALAPUR POLICE STATION,
      DISTRICT BALLARI,
      NOW R/BY STATE PUBLIC PROSECUTOR,
      HIGH COURT OF KARNATAKA,
      DHARWAD BENCH, AT DHARWAD.

2.    MUDDAPAPUR DEVANNA S/O LATE THIMAPPA
      AGE. 45 YEARS, OCC. LABOUR,
      R/O: 4TH WARD, IRANNA CAMP,
      BUKKASAGAR VILLAGE,
      HOSAPETE TALUK, DIST. BALLARI.
                                        ...RESPONDENTS

(BY SRI. RAMESH B CHIGARI, HCGP FOR R1;
SRI. ANAND R KOLLI, ADV., FOR R2)

      THIS CRIMINAL APPEAL IS FILED U/S 14A(2) OF SC/ST
(PA) ACT, SEEKING TO SET ASIDE THE ORDER OF REJECTION OF
REGULAR BAIL DATED 20/04/2021 PASSED BY THE 1ST ADDL.
DISTRICT AND SESSIONS JUDGE, AT BALLARY IN SPECIAL CASE
                              -2-



NO.1324/2020 AND ALLOW THE PRESENT APPEAL                AND
CONSEQUENTLY RELEASE THE APPELLANT ON BAIL.

     THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

The appellant has filed this appeal under Section

14A(2) of SC/ST (PA) Act, seeking to set aside the order of

rejection of regular bail dated 20.04.2021 passed by the

I-Additional District and Sessions Judge, Ballari in Spl.Case

No.1324/2020 and allow the present appeal and release the

appellant-accused on bail.

2. The brief facts are that the victim is the

daughter of the complainant and the complainant has filed a

complaint on 29.10.2020 alleging that his minor daughter

was found missing from 26.10.2020. Therefore, a crime

came to be registered for the offence punishable under

Section 363 of IPC. Subsequently, the investigating officer

found that the present appellant enticed the victim, who

was a minor girl, and they eloped and went to Bengaluru

and between 26.10.2020 to 05.11.2020 and there he had

committed sexual intercourse with her for 4-5 times. That

the appellant was aware of the fact of victim belonging to

Scheduled Caste community and she is minor and he being

a married person, he is alleged to have committed

penetrative sexual assault on her. As such, the victim and

appellant were apprehended from a room in Bengaluru and

brought back. After completing the investigation, the

investigating officer has submitted the charge-sheet against

the appellant. The appellant had moved regular bail before

the I-Additional Sessions Court Ballari and his bail petition

came to be rejected by order dated 20.04.2021. Hence, the

appellant has filed this appeal.

3. Heard the arguments advanced by the learned

counsel appearing for the appellant and the respondents.

Perused the records.

4. The learned counsel for appellant would contend

that the appellant has not committed any offences as

alleged against him and he is in custody since 10 months.

He would also submit that the investigation is concluded

and charge sheet has been laid down and the medical

evidence does not establish the penetrative sexual assault

on the victim girl. He would also undertake to abide by all

the terms and conditions to be imposed by this Court. As

such, he has sought for admitting the appellant on bail.

5. Per contra, the leaned counsels appearing for

respondents submit that the appellant being a married

person, having two children, enticed minor girl who was

aged about 16 years under the pretext of marriage and took

her to Bengaluru and there he committed aggravated

penetrative sexual assault on her having knowledge that

she is belonging to Schedule Caste community. Hence, they

would contend that in case, he is enlarged on bail, there is

every possibility of he tampering with prosecution witnesses

and jumping on bail. Hence, they would seek for rejections

of the appeal.

6. Having heard the arguments advanced by the

learned counsel for parties and perusing the records, it is

evident that the appellant has been prosecuted for the

offences punishable under Sections 363, 376(1)(n) of IPC,

Sections 4 and 6 of POCSO Act, 2012 and Section 3(20)(v-

a) of SC/ST(POA) Act, 1989. Initially, complaint came to be

lodged against unknown person on the basis of the

complaint submitted by the complainant wherein he alleged

that his daughter aged about 16 years was found missing.

Subsequently, the victim daughter of the complainant was

found in the company of the appellant in Bengaluru and

they were secured. The records also disclose that the

statement of the victim girl was recorded under Section

164(5) of Cr.P.C., and she has given her statement before

the Magistrate stating that the accused by enticing her,

under the promise of marriage, took her to Bengaluru and

had committed penetrative sexual assault on her. The

medical evidence also discloses that the hymen was not

intact, which presupposes that it is torn. The victim was

minor girl and apart from that, the other important aspect is

that the appellant is a married person having two children.

Though he was married, he has eloped with victim girl

under a false pretext of marriage by enticing her and it

clearly establishes the mental attitude of the present

appellant. Further, there is a presumption under Section 30

of the POCSO Act against the appellant and he is required to

prove the negative. No doubt investigation is concluded and

charge sheet has been laid down, but mere filing of charge

sheet cannot be termed as a changed circumstance and in

fact it consolidates the case of the prosecution. There is

every possibility of appellant tampering with the prosecution

witnesses and jumping on bail. Looking to the facts and

circumstances, this is not a fit case wherein discretion can

be exercised in favour of the appellant. Hence, the appeal is

devoid of any merits and it needs to be rejected. Hence, the

following:

ORDER

The above appeal is rejected.

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

Sd/-

JUDGE yan