Basavaraj Ningappa Hungund vs The State Of Karnataka
2021 Latest Caselaw 6241 Kant

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           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

        DATED THIS THE 16 T H DAY OF DECEMBER, 2021
                            BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

             CRIMINAL APPEAL NO.100319/2021

   BETWEEN:

   Basavaraj Ningappa Hungund
   Age: 25 years, Occ: Driver
   R/o. Guded Hulikatti village
   Tq: Kalaghatagi, Dist: Dharwad
   Pin Code 581 204.
                                                   ...APPELLANT
   (By Sri. Vasant G. Holeyannavar, Advocate)


   AND:

   1.     The State of Karnataka
          Represented by State Public Prosecutor
          High Court of Karnataka
          Dharwad Bench, Dharwad 580 011.
          P.I Dharwad Sub-Urban Police Station
          Dharwad 580 008.

   2.     Manjula W/o. Nagaraj Kattimani @ Chalwadi
          Age: 40 years, Occ: Household
          R/o. Shivanand Nagar, New Ghadi Karakana
          Dharwad. Pin Code: 580 025.
                                           ....RESPONDENTS

   (By Sri. Ramesh B. Chigari, HCGP for R1; R2 - served)
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       This criminal appeal is filed under Section 14A(2) of
the Scheduled Castes And Scheduled Tribes (Prevention Of
Atrocities)    Act,   1989,    seeking    to   enlarge   the
appellant/accused No.3 on regular bail in connection with
Special S.C.No.30/2020 i.e., Dharwad Sub-urban Police
Station Crime No.103/2020 for the offences under
Sections, 3(1)(w)(i), 3(2)(V), 3(2)(V-a) of SC/ST Act,
2015 and Sections 6 and 8 of the POCSO Act and Sections
354(A), 376, 506 of IPC, pending on the file of the II Addl.
District and Sessions and Special Judge.

      This appeal is coming on for orders, this day, the
court delivered the following:

                       JUDGMENT

Accused No.3 has filed this appeal

challenging the order dated 04.10.2021 passed

in Spl.S.C.No.30/2020 by the II Additional

District and Sessions and Special Judge,

Dharwad, whereunder the bail application of

the appellant/accused No.3 sought in Crime

No.103/2020 of Dharwad Sub-urban Police

Station, registered for the offences punishable

under Section 376 of the Indian Penal Code,

1860 (hereinafter referred to as 'the IPC', for

brevity), Sections 6 and 8 of the Protection of

Children from Sexual Offences Act, 2012

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

brevity) and Sections 3(1)(w)(i) of the

Scheduled Caste and Scheduled Tribes

(Prevention of Atrocities) Act, 1989

(hereinafter referred to as the 'SC/ST (POA)

Act', for brevity), came to be rejected.

2. The case of the prosecution is that,

Dharwad Sub-urban police have registered a

case against Manoj Varagannavar in Crime

No.103/2020 for the offences under Section

376 of IPC and Section 3(1)(w)(i) of SC/ST

(POA) Act and Sections 6 and 8 of the POCSO

Act, on the complaint lodged by Noorjahan

Killedar on 19.08.2020. The Assistant

Commissioner of Police, Dharwad Sub-Division,

Dharwad, has filed charge sheet against

accused Nos. 1 and 2 i.e., accused No.1 -

Manoj Varagannavar and accused No.2 -

Malatesh Nayak, for the aforesaid offences.

The blood sample of accused Nos. 1 and 2 and

victim for DNA report is not matching. On

15.03.2021, the victim gave statement before

the Court under Section 164(5) of Cr.P.C.

mentioning the name of appellant/accused

No.3, stating that he is responsible for her

pregnancy and delivery of child. On

16.07.2021, the victim has given her another

statement in writing before the police during

investigation stating that, two years back her

friend Basavaraj - accused No.3 took her on

motorcycle and stayed in the guest house of

Vijay Kulkarni. They have consumed alcohol

and 3rd accused behaved and moved very

closely with her and committed sexual assault

upon her against her objection and resist. ACP

has got tested blood samples of victim and 3 r d

accused, which is sent for DNA examination.

The victim girl gave birth to a male child on

14.08.2020. Additional charge sheet has been

filed against this appellant/accused No.3, for

offences punishable under Sections 354(A),

376, 506 of the IPC and Section 3(1)(w)(i) and

3(2)(V-a) of the SC/ST(POA) Act and Sections

6 and 8 of the POCSO Act. The

appellant/accused No.3 came to be arrested on

16.07.2021 and remanded to judicial custody.

Appellant/accused No.3 filed bail

application in Special S.C.No.30/2020 and the

same came to be rejected by order dated

04.10.2021 by the II Addl. District and

Sessions and Special Judge, Dharwad. The

appellant/accused has challenged the same in

the present appeal.

3. Heard the arguments of learned

counsel appearing for the appellant/accused

and the learned High Court Government

Pleader for respondent No.1 - State. In spite

of service of notice, respondent No.2 -

complainant remained absent and

unrepresented.

4. Learned counsel for

appellant/accused No.3 would contend that the

victim girl earlier had made accusation against

accused Nos.1 and 2 stating that they are

responsible for her pregnancy. Subsequently,

after their DNA did not mach, she gave another

statement implicating the present accused

No.3. The victim girl is aged about 17 years as

on the date of the alleged offence and she

came in contact with appellant/accused No.3

through instagram and there was love affair

between them and she is of the age of

understanding the consequences of her acts.

The victim girl has not made hue and cry when

she was taken by this appellant/accused No.3

on his motorcycle. As the additional charge

sheet is filed, appellant/accused No.3 is not

required for custodial interrogation. The blood

samples of the appellant/accused No.3 and the

victim girl and the child of the victim have

been collected for DNA test. Without

considering these aspects, the learned

Sessions and Special Judge has rejected the

bail application of the appellant/accused No.3,

which requires interference by this Court. With

this he prayed to allow the appeal.

5. Per contra, learned High Court

Government Pleader for respondent No.1 would

contend that the victim girl in her statement

recorded under Section 164 Cr.P.C. on

05.03.2021 and in her statement dated

16.07.2021 has specifically stated that the

appellant/accused No.3 is responsible for her

pregnancy and he taking her on his bike to a

guest house, had sexual intercourse with her.

It is his further submission that DNA report has

been received, wherein it is opined that the

appellant/accused No.3 is the biological father

of the male baby of victim girl and the same

establishes the sexual intercourse of this

appellant/accused No.3 with the victim girl.

The victim girl was aged 17 years at the time

of incident. There are sufficient materials

against this petitioner for the offences alleged

against him. If he 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 application of the appellant/accused No.3,

which does not require any interference by this

Court. With this he prayed to dismiss the

appeal.

6. Having regard to the submissions

made by the learned counsel for the

appellant/accused No.3 and the learned High

Court Government Pleader for the respondent

No.1-State, this Court has gone through the

charge sheet, additional charge sheet and the

impugned order.

7. Earlier on the statement of the victim

girl, charge sheet came to be filed against

accused Nos. 1 and 2 for offence under Section

376 of the IPC and Section 3(1)(w)(i) of the

SC/ST(POA) Act and Sections 6 and 8 of the

POCSO Act. Earlier the victim has stated that

accused No.2 is responsible for her pregnancy.

When the DNA test did not match, thereafter

she gave statement on 05.03.2021 naming this

appellant/accused No.3 as responsible for her

pregnancy. The victim girl in her statement

dated 16.07.2021 has stated that she came in

contact with this appellant/accused No.3

through instagram. From the same, it appears

that there is love affair between appellant No.3

and the victim girl. The victim girl is of the

age of understanding the consequences of her

acts. As the additional charge sheet is filed,

the appellant/accused No.3 is not required for

custodial interrogation. There are no criminal

antecedents of the appellant/accused No.3.

Without considering all these aspects, the

learned Sessions and Special Judge has passed

the impugned order, which requires

interference by this Court. The main objection

of the prosecution is that, if the

appellant/accused No.3 is granted bail, he will

threaten the complainant and other prosecution

witnesses and flee from justice. The said

objection 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 to the appellant/accused No.3 subject to

stringent conditions. Hence, I proceed to pass

the following:

ORDER

The appeal is allowed.

The impugned order dated 04.10.2021

passed in Special S.C.No.30/2020 by the II Addl.

District and Sessions and Special Judge, Dharwad,

is set aside.

Consequently, the bail application filed by the

appellant/accused No.3 under Section 439 of

Cr.P.C. stands allowed. The appellant-accused

No.3 shall be released on bail in Crime

No.103/2020 of Dharwad Sub-urban Police

Station, subject to the following conditions:

i) The appellant/accused No.3 shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh Only), with one surety for the like sum to the satisfaction of the jurisdictional Court.

ii) The appellant/accused No.3 shall not indulge in tampering the prosecution witnesses.

iii) The appellant/accused No.3 shall attend the Court on all the dates of hearing unless exempted and co- operate in speedy disposal of the case.

Sd/-

JUDGE

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