Bannimatti Mabusab S/O Peerasab vs The State Of Karnataka
2021 Latest Caselaw 6244 Kant

                                1




           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.100343/2021

   BETWEEN:

   Bannimatti Mabusab
   S/o. Peerasab
   Age: 21 years, Occ: Labourer
   R/o. Ramaswamy Badavani
   Hadagali Tq.
   Ballari Dist. 583 219
                                                   ...APPELLANT
   (By Sri. B. Anwar Basha, Advocate)


   AND:

   1.     The State of Karnataka
          (Through Hadagali Police Station)
          Represented by State Public Prosecutor
          High Court of Karnataka
          Dharwad 580 011.

   2.     Anjenamma C
          S/o. Late Andappa
          Age: 46 years, Occ: Labourer
          R/o. Rajeva Nagar, 2nd Plot
          Hadagali Town, Hadagali Tq.
          Ballari Dist. 583 212.
                                            ....RESPONDENTS

   (By Sri. Ramesh B. Chigari, HCGP for R1; R2 - present)
                               2




      This criminal appeal is filed under Section 14A(2) of
the Scheduled Castes And Scheduled Tribes (Prevention Of
Atrocities) Act, 1989, seeking to set aside the order dated
29.10.2021 passed by the learned I Addl. District and
Sessions     Judge,     Ballari   in   and    enlarge   the
appellant/accused No.1 on bail in Spl. Case No.1064/2020
in connection with Crime No.88/2020 registered by
Hadagali Police Station for the offences under Sections
376(N), 366, 363 of IPC and Sections 6 and 4 of the
POCSO Act and Sections 3(2)(5), 3(1)(w), 3(2)(v-a) 3(i)
(s) 3(i)(r) of SC/ST Act, 1989 pending trial of the case
before I Addl. District and Sessions Judge, Ballari.

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

                       JUDGMENT

The sole accused has filed this appeal

seeking setting aside of the order dated

29.10.2021 passed in Spl. Case No.1064/2020

by the I Additional District and Sessions Judge,

Ballari, whereunder the bail application of the

appellant/accused sought in Crime No.88/2020

of Hadagali Police Station, registered for the

offences punishable under Sections 363, 366,

376(N) of the Indian Penal Code, 1860

(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

brevity) and Sections 3(1)(r)(s), 3(1)(w),

3(2)(V), 3(2)(V-a) 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,

the daughter of the complainant i.e., the victim

girl aged about 16 years, who has studied up

to S.S.L.C. found missing on 10.09.2020 and

therefore the complaint came to be filed and

registered for the offences under Section 363

of the IPC. After arrest of the

appellant/accused and tracing the victim girl

and recording the statement of the victim,

charge sheet has been filed for the aforesaid

offences. The appellant/accused came to be

arrested on 15.09.2020 and remanded to

judicial custody. The appellant/accused filed

bail application in Special Case No.1064/2020

and the same came to be rejected by order

dated 29.10.2021 by the I Addl. District and

Sessions Judge, Ballari. 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.

Respondent No.2 - complainant and the victim

girl are present before the Court. Respondent

No.2 complainant prays not to grant bail to the

appellant.

4. Learned counsel for appellant/

accused would contend that, there was love

affair between the appellant and the victim girl

and she voluntarily went along with the

appellant/accused on 10.09.2020 and stayed

with him for five days. The victim girl is aged

16 years and she is of the age of

understanding the consequences of her act.

The doctor who examined the victim girl has

stated that there is hymen rapture (old) and

there were no signs of recent forcible sexual or

physical assault. As the charge sheet is filed,

the appellant/accused is not required for

custodial interrogation. Without considering

these aspects, the learned Sessions Judge has

passed the impugned order, 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 date of birth of the victim girl

is 18.08.2004 and she was aged 16 years 01

month as on the date of the alleged offence.

The victim girl in her statement recorded under

Section 164 Cr.P.C. has specifically stated the

sexual intercourse by the appellant/accused on

her during the period between 10.09.2020 to

14.09.2020. The doctor who examined the

victim girl has noted that there is rapture of

hymen (old) and given final opinion after

receipt of FSL that there are no signs

suggestive of recent forceful sexual

intercourse. However, seminal stain was

detected in article No.4 tight. It is his further

submission that the charge sheet material

show prima facie case against the

appellant/accused for the offence alleged

against him. If the appellant/accused is

granted bail, he will threaten the complainant

and other prosecution witnesses. Considering

al these aspects, the learned Sessions Judge

has rightly rejected the bail application, which

does not require 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, learned High Court

Government Pleader for respondent No.1-State,

this Court has gone through the charge sheet

records and the order passed by the Sessions

Court.

7. The date of birth of the victim girl is

18.08.2004 and she is aged 16 years 1 month

as on the date of incident. On perusal of the

statement of the victim girl recorded by the

police and also under Section 164 Cr.P.C., it is

clear that the victim girl is having love affair

with the appellant/accused and she voluntarily

went along with him on 10.09.2020 and stayed

till 14.09.2020 in a tea estate at

Chikkamagalur. The victim is of the age of

understanding the consequences of her acts.

The appellant/accused is in judicial custody

since 15.09.2020 i.e., more than 15 months.

As the charge sheet is filed, the appellant is

not required for any custodial interrogation.

There are no criminal antecedents of the

appellant. Without considering all these

aspects, learned Sessions Judge has rejected

his bail application, which requires interference

by this Court. The main objection of the

prosecution is that, if the appellant/accused is

granted bail, he will threaten the complainant

and other prosecution witnesses. 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 subject to

stringent conditions. Hence, I proceed to pass

the following:

ORDER

The appeal is allowed.

The impugned order dated 29.10.2021

passed in Special Case No.1064/2020 by the I

Addl. District and Sessions Judge, Ballari, is set

aside.

Consequently, the bail application filed by the

appellant under Section 439 of Cr.P.C. stands

allowed. The appellant-accused shall be released

on bail in Crime No.88/2020 of Hadagali 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 like sum to the satisfaction of the jurisdictional Court.

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

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

Sd/-

JUDGE g ab