Sandeep K vs The State Of Karnataka
2021 Latest Caselaw 5949 Kant

                          1

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF DECEMBER, 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

            CRIMINAL APPEAL NO.1228 OF 2021


BETWEEN:

SANDEEP K.
S/O. KRISHNAPPA,
AGED ABOUT 21 YEARS
OCC: AGRICULTURIST
R/O. HOSAKOPPA VILLAGE,
SHIVAMOGGA TALUK,
SHIVAMOGGA DISTRICT-577 201.
                                          ... APPELLANT
(BY SRI. R.B. DESHPANDE, ADVOCATE)

AND:


1.     THE STATE OF KARNATAKA
       BY WOMEN POLICE STATION
       SHIVAMOGGA-577 201
       (REPRESENTED BY STATE PUBLIC PROSECUTOR
       HIGH COURT BUILDING
       BENGALURU-560 001)

2.     KUM. RAKSHITHA
       D/O. LATE ANJANAPPA
       AGED ABOUT 17 YEARS
       OCC:STUDENT
       R/O. BEHIND GOVT. HOSPITAL
       THARIKERE
       CHIKKAMAGALURU DISTRICT-577 228
       REPRESENTED BY HER MOTHER PAVITHRA
       W/O. LATE ANJANAPPA
                            2

     PERMANENT RESIDENT OF THALUKU
     BELLARY TALUK AND DISTRICT-583 101
                                     .... RESPONDENTS

(BY SMT. LEENA C. SHIVAPURMATH, HCGP FOR R.1;
 R.2 IS SERVED)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
14(A)(2) OF SC/ST (POA) ACT, PRAYING TO SET ASIDE THE
ORDER DATED 08.04.2021 IN SPL.C.NO.68/2021 PASSED BY
THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-1
(POCSO), SHIVAMOGGA, CONSEQUENTLY ENLARGE THE
APPELLANT/ACCUSED NO.4 ON BAIL IN CR.NO.116/2020 OF
WOMEN POLICE STATION, SHIVAMOGGA SUB-DIVISION,
SHIVAMOGGA DISTRICT NOW PENDING ON THE FILE OF
ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-1
(POCSO), SHIVAMOGGA IN SPL.C.NO.68/2021 (CHARGE-
SHEET FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
366, 366(A), 376(2)(f), 376DA AND 506 OF IPC AND
SECTION 6 OF POCSO ACT AND SECTION 3(1)(w)(i)(ii) AND
3(2)(v) OF SC/ST (POA) AMENDMENT ACT, 2015.

      THIS CRIMINAL APPEAL IS COMING ON FOR ORDERS
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING;

                      JUDGMENT

This appeal is preferred by accused No.4 seeking to

set aside the order dated 08.04.2021 passed by the

Additional District & Sessions Judge FTSC-I (POCSO),

Shivamogga, in Special Case.No.68/2021, whereby the

application filed by him under Section 439 of Cr.P.C has

been rejected.

2. Heard the learned counsel for appellant and the

learned counsel for respondent/State and perused the

material on record.

3. The learned HCGP submits that the respondent

No.2 has been informed about filing of this appeal and

notice has been served.

4. Briefly stated, the case of the prosecution is

that, on 12.11.2020 victim's mother was admitted at Mc

Gann Hospital, Shivamogga. The victim was attending

and taking care of her mother. At that time accused

No.1, working on contract basis as a group 'D' employee

in the said hospital befriended the victim. On

05.12.2020, accused No.1 on along with his friend

accused No.2 by inducing the victim took her in a

Maruthi Van brought by accused No.3 and accused No.4

and accused Nos.3 and 4 followed the Maruthi Van in

their two wheelers. Thereafter, all the accused one by

one committed rape on the victim and also abused her in

filthy language referring to her caste and threatened her

with dire consequences not to disclose the incident to

others.

5. The learned counsel for the appellant has

contended that the victim was sent to medical

examination on the very next day and as per the medical

report as well as FSL report there are no signs of recent

sexual intercourse. He contends that medical report

does not support the case of prosecution that the victim

was subjected to forcible penetrative sexual assault by

accused persons. Therefore, states that the entire

allegations are false and concocted. He contends that the

learned Sessions Judge has not taken into consideration

these aspects and erroneously rejected the bail petition.

He submits that the appellant is in judicial custody from

07.12.2020 and he is ready and willing to abide any

conditions. Hence, seeks to allow the appeal.

6. The learned HCGP on the other hand has

vehemently opposed grant of bail to the appellant

contending that the victim in her statement has narrated

how the incident took place and she has clearly stated

that all the accused have committed rape on her. She

contends that the victim belong to Scheduled Caste and

she is a minor. The accused by taking advantage of her

innocence, committed gang rape and also abused her

insulting her caste. She contends that in view of the

serious nature of the offence committed by the

appellant, the learned Sessions Judge has rightly

rejected the application filed under Section 439 of

Cr.P.C.

7. The incident has taken place on the night

intervening 5/6.12.2020. The complaint is lodged by the

victim. The complaint reveals that all the accused have

committed penetrative sexual assault on her and also

abused and threatened her. The statement of the victim

has been recorded under Section 164 of Cr.P.C by the

learned Magistrate. Even in the said statement, victim

has narrated about the incident and stated that the

accused persons including the appellant herein have

committed penetrative sexual assault on her.

8. The contention of the learned counsel for the

appellant that the medical examination report and FSL

report does not corroborate the version of the victim and

therefore the entire allegations are false etc., cannot be

accepted at this stage, in view of the statement given by

the victim. Even in the history furnished by the victim

before the doctor, she has stated that accused No.1 and

3 others have committed sexual intercourse on her.

Merely because there are no external injuries, this Court

cannot come to the conclusion that no such incident has

taken place, as stated by the victim. In the said facts

and circumstances no grounds are made out to interfere

with the order passed by the learned Sessions Judge

rejecting the bail application filed under Section 439 of

Cr.P.C.

Appeal is dismissed.

Sd/-

JUDGE

BH