Shri. Gous Imamsab Attar vs The State Of Karnataka
2021 Latest Caselaw 6058 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

     DATED THIS THE 14 T H DAY OF DECEMBER 2021
                          BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

           CRIMINAL APPEAL NO.100332 OF 2021

   BETWEEN:

   SHRI. GOUS IMAMSAB ATTAR
   AGE: 22 YEARS, OCC: AGRICULTURE
   R/O: VAKKUND, TQ: BAILHONGAL
   DISTRICT: BELAGAVI-591102.
                                           ...A PPELLANT
   (BY SRI S . M . MUCHHANDI, ADV .)

   AND:

   1.    THE STATE OF KARNATAKA
   THE POLICE INSPECTOR BAILHONGAL,
   TALUK: BAILHONGAL, DISTRICT: BELAGAVI-591102.
   REPRESENTED BY ITS STATE PUBLIC PROSECUTOR
   HIGH COURT BUILDING, HIGH COURT OF KARNATAKA
   AT: DHARWAD BENCH - 580011.

   2.    SMT. SUMITRA
   W/O. MANJUNATH TALAWAR,
   R/O: VAKKUND (BASAV COLONY),
   TALUK: BAILHONGAL, DISTRICT: BELAGAVI - 591102.
                                        ... RES PONDENTS
   (BY SRI RAMESH B. CHIGARI , HCGP FOR R1
    R2- SERVED)


          THIS CRIMINAL APPEAL IS FILED U/S 14-A (2) OF
   THE    SCHED ULED CASTES AND SCHEDULED TRIBES
                             2




(PREVENTION OF ATROCITIES) ACT 1989 S EEKING T O
ALLOW THE A PPEAL FILED BY THI S APPELLANT BY
SETTING    ASIDE   THE   ORDER    PASSED      IN      CRL.
MISC.NO.1040/ 2020 DATED 29.10.2021 PASS ED BY
HON'BLE III ADD ITIONAL DISTRICT AND SESSIONS
COURT BELAGAVI AND FURTHER BE PLEAS E TO ALLOW
THE   CRL.MISC.N O.1040/2021   AN D    FURTHER         THE
APPELLANT/ACCUS ED MAY KINDLY BE ENLARGED ON
REGULAR      BAIL    IN    SPL.CA SE      NO.191/ 2021
(BAILHONGA L   P.S.   CRIME   NO.145/ 2021)       UND ER
SECTIONS 376( 2)( n), 506 AND SECTIONS 4 AND 6 OF
POCS O ACT AND S ECTIONS 3( 2)( va) , 3( 1)(w)( i)( ii) OF
SC/ST (PA) ACT, PENDING ON THE FILE OF HON'BLE
III ADDITIONAL DISTRICT AND SESSIONS COURT
BELAGAVI .

    THIS   CRIMINAL       APPEAL COMI NG ON          F OR
ORDERS, THIS DAY,        THE COURT DELIVERED         THE
FOLLOWING:

                     JUDGMENT

Accused No.2 has filed this appeal seeking

setting aside the order dated 29.10.2021 passed in

Criminal Miscellaneous No.1040/2021 by the learned

III Additional District and Sessions Judge, Belagavi,

whereunder the bail petition of the appellant sought in

Bailhongal Police Station Crime No.145/2021 for the

offences under Sections 376(2)(n) and 506 of the

Indian Penal Code (hereinafter referred to as the 'IPC',

for brevity), Sections 4 and 6 of the Protection of

children from Sexual Offences Act, 2012 (hereinafter

referred to as the 'POCSO Act', for short) and Sections

3(2)(v), 3(1)(w) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989

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

brevity) came to be rejected.

2. The case of the prosecution is that one

Smt. Sumitra, resident of Vakkund village has filed

complaint stating that she is the maternal aunt of the

victim and she is residing in Vakkund village in the

house of Tammanna, as her house had fallen due to

flood and heavy rain. It is further stated that the

victim, aged about 16 years, is the daughter of

complainant's younger sister, who is wife of the said

Tammanna. The victim girl has discontinued her

studies after 7th standard and she is staying at home

and doing house hold work. On 12.06.2021 when the

complainant observed that the stomach of victim girl

is little expanded, she questioned the victim girl as to

whether she is regularly getting her monthly period.

After enquiry she came to know that victim is six

months pregnant. When the victim was questioned as

to the reason for pregnancy, she told that one Nagaraj

Gangappa Kolkar (Juvenile offender/accused No.1)

had forcible sex with her on 03.07.2020 and he had

told her not to reveal the same to any one. Again the

victim girl told the complainant that during December

i.e. during fair of Holegangamma she came in contact

with the appellant/accused No.2 and frequently spoke

to him over phone. He also committed forcible sexual

intercourse on 14.12.2020, seven to eight times

thereafter and he had threatened her with dire

consequences, if she informed the same to her

parents and therefore she did not inform to any one.

The appellant/accused No.2 came to be arrested on

14.06.2021. The Police after the investigation filed

charge sheet against the appellant/accused No.2 for

the offences punishable under Sections 376(2)(n) and

506 of IPC, Sections 4 and 6 of POCSO Act and

Sections 3(2)(v), 3(1)(w)(i)(ii) of SC and ST Act and

now the case is pending in Special Case No.191/2021

on the file of the learned III Additional District and

Sessions Court, Belagavi. The appellant/accused No.2

filed Crl.Misc.No.1040/2021 seeking bail and the same

came to be rejected by the learned III Additional

District and Sessions Court, Belagavi by order dated

29.10.2021. The appellant/accused No.2 has

challenged the said order in the present appeal.

3. Heard the arguments of learned counsel

appearing for appellant/accused No.2 and learned

High Court Government Pleader for the respondent-

State.

       4.     The        learned           counsel        for       the

appellant/accused        No.2      would      contend      that     the

alleged incident has taken place during December-

2020 and the complaint came to be filed on

13.06.2021 and there is a delay in filing the

complaint. In the spot mahazar, the victim has shown

the spot stating that one Shri. Shivabasappa

Seemappa Dalawai has committed sexual intercourse

on her. It is his further submission that, during

medical examination, the victim girl before the doctor

has told that sexual assault taken place about four

days prior to her examination and she is having sexual

contact since 1½ years. It is his further submission

that on the basis of the complaint, there are two

persons, who have sexual intercourse on the victim

girl and DNA report is not yet received and at this

stage, it cannot be said that the appellant/accused

No.2 is responsible for the pregnancy of the victim

girl. The appellant/accused No.2 is 21 years old and

he is in judicial custody since 14.06.2021. As the

charge sheet is filed, the appellant/accused No.2 is

not required for custodial interrogation. It is his

further submission that, without considering all these

aspects, the learned Sessions Judge has rejected the

bail petition of the appellant which requires

interference by this Court. With this, he prayed to

allow the appeal.

5. Per contra, the learned High Court

Government Pleader has contended that the offences

alleged against the appellant/accused No.2 are

heinous offence. It is his further submission that the

date of birth of the victim is 29.03.2005 and as on the

date of the alleged offence, during December-2020,

she was aged 15 years 7 months. The victim girl gave

birth to a female child on 24.09.2020 and

subsequently child died on 18.10.2021. The blood

samples of the appellant, the victim and the baby

have been taken for DNA test. The report is awaited.

It is his further submission that the victim girl in her

statement recorded under Section 164 of Cr.P.C. has

specifically stated about the overt act of the present

appellant/accused No.2. There is a presumption

under Section 29 and 30 of the POCSO Act. The

charge sheet material shows prima facie case against

the appellant/accused No.2 and if the

appellant/accused No.2 is released on bail, he will

tamper the prosecution witnesses and flee from

justice. Considering all these aspects the learned

Sessions Judge has rightly rejected the bail petition of

the appellant/accused No.2, 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/accused No.2

and the learned High Court Government Pleader for

respondent-State, this Court has gone through the

charge sheet records and impugned order.

7. The age of the victim girl, as on the date of

the alleged incident is 15 years 7 months. The victim

girl, who become pregnant, gave birth to a female

child on 24.09.2021 and subsequently the said child

died on 18.10.2021. The blood samples of the

appellant, the victim and the baby have been collected

for DNA test. DNA test report is yet to be received.

In the complaint there are allegations that two

persons i.e. accused Nos.1 and 2 have committed

sexual intercourse on the victim girl. Whether,

accused No.1 is responsible for pregnancy or accused

No.2 is responsible for pregnancy, is to be revealed

only after receipt of DNA report. As the charge sheet

is filed the appellant/accused No.2 is not required for

custodial interrogation. There are no criminal

antecedents of the appellant/accused No.2. Without

considering all these aspects, the learned Sessions

Judge has passed the impugned order, which requires

interference by this Court. The main objections of the

prosecution is that, if the appellant/accused No.2 is

granted bail, he will threaten the complainant and

other prosecution witnesses, can be met with by

imposing stringent conditions.

8. 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 impugned order

dated 29.10.2021 passed in Criminal Miscellaneous

No.1040/2021 by the learned III Additional District

and Sessions Judge, Belagavi, is set aside. The bail

petition of the appellant/accused No.2 stands allowed.

The appellant/accused No.2 is ordered to be released

on bail in Crime No.145/2021 of Bailhongal Police

Station, subject to the following conditions:

i. The appellant/accused No.2 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/accused No.2 shall not indulge in tampering the prosecution witnesses.

iii. The appellant/accused No.2 shall attend the Court on all dates of hearing, unless exempted, and co-operate in speedy disposal of the case.

SD/-

JUDGE SMM & Kmv