Appu @ Maliksab Mulla vs The State Of Karnataka And Anr
2021 Latest Caselaw 5846 Kant

        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

    DATED THIS THE 9TH DAY OF DECEMBER 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

        CRIMINAL APPEAL No.200228/2021

BETWEEN:

SHRI APPU @ MALIKSAB MULLA
S/O SHRI. MAINUDDIN MULLA
AGED ABOUT 24 YEARS
OCC: K E B SUB-CONTRACTOR
RESIDENT OF KATRALA
TALUKA CHADACHAN
DISTRICT VIJAYAPURA
                                            ... APPELLANT
(BY SRI G.G.CHAGASHETTI, ADVOCATE)

AND:

1. THE STATE OF KARNATAKA
   BY ITS CHADACHAN POLICE
   STATION VIJAYAPUR
   REPRESENTED BY
   ADDL STATE PUBLIC PROSECUTOR
   HIGH COURT BUILDING
   KALABURAGI-585102.

2. SRI. PANDIT BANGARTALA
   S/O SHRI KRISHNAPPA BANGARTALA
   AGED ABOUT 46 YEARS, OCC: COOLIE
   RESIDENT OF SATALGAON (PB)
   TQ CHADCHAN
   DIST VIJAYAPUR-586101.
                                        ... RESPONDENTS

(BY SRI GURURAJ V. HASILKAR, HCGP FOR R1)
                              2



     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 14-A
(2) SC & ST (PREVENTION OF ATROCITY) ACT, 1989 PRAYING
TO ALLOW THIS APPEAL AND ENLARGE THE APPELLANT ON
BAIL UNDER SECTION 14-A(2) OF SC AND ST (PREVENTION OF
ATROCITY) ACT 1989 IN CRIME NO. 86/2021 OF CHADACHAN
POLICE, FOR THE OFFENCES PUNISHABLE U/SEC. 376(2)(I),
R/W SEC 34 OF INDIAN PENAL CODE AND SEC 4, 6
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT AND
U/SEC. 3(1)(W), 3(2)(V) SC/ST (POA) ACT, PENDING ON THE
FILE OF LEARNED ADDL. SESSIONS JUDGE. F T S C-1 (POCSO)
AT VIJAYAPUR.


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

                       JUDGMENT

The learned High Court Government Pleader submits

that the complainant/informant is notified.

2. Heard the learned counsel for the appellant

and also the learned High Court Government Pleader for

the State.

3. The factual matrix of the case is that on

22.08.2021 at about 7.00 p.m. when the complainant's

daughter came out from the house to attend the nature

call with one Poornima and when the said Poornima was

rushed back to the house on hearing his father's voice

calling her, taking advantage of said situation, this

appellant along with the other dragged her and this

appellant subjected her for the sexual act against her wish.

The complaint has been lodged in respect of the said

incident. Based on the complaint, the police have

registered case, investigated the matter and filed the

charge sheet.

4. The learned counsel for the appellant would

vehemently contend that according to Section 164

statement of the victim, the appellant was apprehended on

the spot on 22.08.2021. It is the case of the prosecution

that the appellant was apprehended on 26.08.2021. The

complaint was given on 25.08.2021 and hence, it is clear

that the very case of the prosecution is suspicious and

hence, it is a fit case to exercise the discretion since

already investigation is completed and charge sheet has

been filed.

5. Per contra, the learned High Court Government

Pleader would submit that the victim is aged about 13½

years and she was also subjected to the medical

examination and the medical report discloses that she has

suffered external injuries and also injuries found on the

private part. Hence, the medical report substantiate the

case of the prosecution as there are prima facie material

against this appellant. He further submitted that the victim

due to shock while giving statement before the learned

Magistrate under Section 164 stated that the appellant was

apprehended at the spot but the fact is that only after

giving the complaint, he was apprehended on the next day

and the same cannot be the ground to enlarge him on bail.

6. Having heard the respective counsel for the

parties and also on perusal of material on record, it

discloses that appellant along with the other dragged the

victim girl and this appellant subjected her for sexual act.

No doubt, there is a delay of three days in lodging the

complaint and the same in a case of heinous offence under

Section 376 of IPC is not a material aspect to enlarge the

appellant on bail. Having considering the prima facie

material before the Court that the victim has suffered

external injuries and apart from that medical report

discloses that her private part also there are injuries and

when the medical report suggest that the victim was

subjected to sexual act and that too she is aged about

13½ years, it is not a fit case to exercise the powers under

Section 439 of Cr.P.C. The very contention of the

appellant counsel that the case of the prosecution is very

suspicious since contra statements are made both in the

complaint and in 164 statement cannot be appreciated and

the prosecution is made out a case against the appellant.

7. In view of the discussions made above, I pass

the following:

ORDER

The bail petition is rejected.

Sd/-

JUDGE

SAN