Dyamanagouda S/O Sharanappa ... vs The State Of Karnataka
2021 Latest Caselaw 5266 Kant

                              1




             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 2 n d DAY OF DECEMBER 2021
                           BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

             CRIMINAL APPEAL NO.100295/2021

   BETWEEN:

   DYAMANAGOUDA
   S/O SHARANA PPA GOUDRA @ VARATATTANAL
   AGE 22 YEARS , OCC WORKIN G IN AKHIL
   SAI BABA FA CTORY
   T/O. CHIKKA BA GA NAL
   TQ AND DIST KOPPAL- 583228
                                        ...A PPELLANT
   (BY SRI. A.M . MALIPATIL, ADVOCATE)

   AND:

   1 .    THE STATE OF KARNATAKA
          THROUGH MUNIRA BAD POLICE STATI ON
          REPRES ENTED BY SPECIA L PROS ECUTOR
          HIGH COURT OF K ARNATAKA
          DHRWAD BEN CH D HARWAD

   2 . BHARAMAPPA S/O. NARASAPPA VA LI KAR
       AGE 65 YEARS ,
       OCC. A GRICULTURE,
       R/O. CHIKKABA GA NAL,
       TQ AND DIST . K OPPAL- 583228
                                     ... RES PONDENTS
   (BY SRI. RAMESH B.CHI GARI, HCGP)

        THIS CRIMINAL APPEAL IS FILED U/S 14A(2) OF
   SC AND ST ACT, 2015, SEEKING T O SET ASIDE THE
   ORDER DATED 30.08.2021 PASS ED IN SPECIAL SC.
   POCS O NO.16/ 2021 BY THE COURT OF THE ADDL
                            2




DISTRICT AND SESSIONS JUD GE, FTSC AT KOPPA L
AND CONSEQUEN TLY ENLARGE THE APPELLANT ON
REGULAR BAIL FOR THE OFF ENCES PUNISHA BLE U/S
363, 376 AND 343 OF IPC AND U/ S 6 OF POCS O ACT
2012 AND U/S 3(1)(w) , 3(2)(V a) OF SC AND ST
AMENDMENT ACT 2015, REGISTERED IN MUNIRABAD
POLI CE       CRIME        NO.         140/ 2021.


     THIS CRIMINAL A PPEAL COMING ON FOR ORDERS
THIS DAY, T HE COURT DELIVERED THE F OLLOWING:


                   JUDGMENT

The sole accused has filed this appeal

challenging the order dated 30.08.2021 passed

in Spl.SC.POCSO No.16/2021 by the learned

Additional District and Sessions Judge, FTSC-I,

Koppal, whereunder the bail application filed

by the appellant/accused in Crime No.140/2021

of Munirabad Police Station for the offences

under Sections 363 and 376 of The Indian

Penal Code (hereinafter referred to as the

'IPC', for brevity), Section 6 of the Protection

of Children from Sexual Offences Act, 2012

(hereinafter referred to as the 'POCSO Act', for

short) and Section 3(1)(w) and 3(2)(va) of the

Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989,

(hereinafter referred to as the 'SC & ST Act',

for short) came to be rejected.

2. The case of the prosecution is that,

one Bharamappa son of Narasapa Walikar has

filed complaint stating that he has six children

and his daughter/victim girl is aged about 17

years studying in I PUC. It is further stated

that on 08.06.2021 at 5.00am his daughter

went to attend nature call by informing her

mother and thereafter she did not return to the

house. She informed the same to the

complainant and they searched for the victim

girl in the village and enquired with the

relatives but could not trace her. Thereafter,

he filed a missing complaint alleging that some

unknown had kidnapped his daughter. The

said complaint came to be registered in Crime

No.140/2021 for an offence under Section 363

of IPC against unknown person. During the

course of investigation, the Police arrested the

appellant/accused on 15.06.2021. After

investigation, the Police filed charge-sheet for

offence under Sections 363, 376 and 343 of

IPC, Section 6 of POCSO Act and Section

3(1)(w) & 3(2)(va) of SC & ST Act. The

appellant/accused filed bail application in

Spl.SC.POCSO No.16/2021 and the same came

to be rejected by the learned Additional

District and Sessions Judge, FTSC-I, Koppal by

order dated 30.08.2021. The appellant has

challenged the said order in the present

appeal.

3. Heard the arguments of the learned

counsel appearing for the appellant and the

learned High Court Government Pleader for the

respondent No.1-State.

Respondent No.2, in spite of service of

notice, remained absent and unrepresented.

4. The learned counsel for the appellant

would contend that there was love affair

between the appellant/accused and the victim

girl and on coming to know of the same, the

parents of the victim girl scolded her on

07.06.2021 and on the next day, she

voluntarily came out of the house and met

the appellant/accused. It is his further

submission that to break the love affair

between the appellant and the victim girl, a

false complaint has been foisted against the

appellant/accused. On perusal of the

statements of the victim girl recorded by the

police and recorded by the judicial Magistrate,

it is clear that, there is love affair between the

appellant/accused and the victim girl. Charge-

sheet is filed and therefore, the appellant is

not required for custodial investigation.

Without considering all these aspects, the

learned Sessions Judge has passed the

impugned order which requires interference by

this Court. With this, he prayed for allowing

the petition.

5. Per contra, learned High Court

Government Pleader has contended that the

date of birth of the victim girl is 03.06.2004

and she was aged 17 years as on the date of

the offence. It is his further submission that

on perusal of the statements of the victim girl

recorded by the police and recorded by the

judicial Magistrate under Section 164 of

Cr.P.C., it is clear that, there was forcible

sexual intercourse by the appellant/accused on

the victim girl. The Doctor who examined the

victim girl has noted that hymen is ruptured.

Charge-sheet material show prima facie case

against the appellant/accused for the offences

alleged against him. Considering all these

aspects, the learned Sessions/Special Judge

has rightly rejected the bail application which

does not require any interference by this

Court. With this, he prayed to dismiss the

appeal.

6. Having regard to the submission

made by the learned counsel for the appellant

and the learned High Court Government

Pleader, this Court has gone through the

charge sheet records.

7. The date of birth of the victim girl is

03.06.2004 and her age as on the date of the

offence is 17 years. On perusal of the

statements of the victim girl recorded by the

Police and recorded under Section 164 of

Cr.P.C. by the judicial Magistrate, it is clear

that there was love affair between the

appellant/accused and the victim girl. As the

parents of the victim girl scolded her on

07.06.2021, she voluntarily left the house on

08.06.2012. The victim girl stayed with the

appellant/accused till 15.06.2021 and has not

made any hue and cry. The Doctor who

examined the victim girl has noted that, there

are no injuries on the body and external

genetalia of the victim girl. The victim girl is

of the age of understanding the consequences

of her act. The offences alleged against the

appellant/accused are not punishable with

death. There are no criminal antecedents. The

appellant is aged 22 years. Without considering

all these aspects, the learned Sessions/Special

Judge has rejected the bail application of the

appellant/accused which requires interference

by this Court.

8. The main objection of the prosecution

is that, if the appellant is granted bail, he will

threaten the complainant and other prosecution

witnesses and flee from justice. The said

objection may be met with by imposing

stringent conditions.

9. In the facts and circumstances of the

case and submission of the counsel, this Court

is of the view that there are valid grounds for

setting aside the impugned order and granting

bail subject to certain terms and conditions.

Hence, I proceed to pass the following:

ORDER

The appeal is allowed. The order dated

30.08.2021 passed in Spl.SC.POCSO

No.16/2021 by the Additional District and

Sessions Judge, FTSC-I, Koppal, is set aside.

The bail application filed by the

appellant/accused stands allowed.

Consequently, the appellant/accused shall be

released on bail in Crime No.140/2021 of

Munirabad Police Station subject to the

following conditions:

i) The appellant/accused shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only)

with one surety for the likesum to the satisfaction of the jurisdictional Court.

ii) The appellant shall not indulge in tampering the prosecution witnesses.

iii) The appellant shall appear before the Court on all the dates of hearing unless exempted and co-operate in speedy disposal of the case.

Sd/-

JUDGE

kmv