Birappa S/O Mallappa Soddi vs The State Of Karnataka And Anr
2021 Latest Caselaw 3776 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 10TH DAY OF NOVEMBER, 2021

                        BEFORE

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

          CRIMINAL APPEAL No.200187/2021

BETWEEN:

BIRAPPA S/O MALLAPPA SODDI
AGE: 32 YEARS, OCC: AGRICULTURE
R/O BABALESHWAR
TQ. BABALSHWAR
DIST. VIJAYAPURA-586123
                                            ... APPELLANT

(BY SRI SHIVANAND V. PATTANSHETTI, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       R/BY ADDL. SPP
       KALABURAGI BENCH-585106
       (THROUGH ZALAKI P.S.,
       DIST. VIJAYAPURA-586121)

2.     LAXMI D/O ANNAPPA SIRASANGI
       AGE: 26 YEARS
       OCC: COOK IN GOVT. LADIES HOSTEL
       R/O HARALAPUR, TQ. SOUDATTI
       DIST. BELAGAVI
       NOW RESIDING AT BABALESHWAR
       TQ. BABALESHWAR
       DIST. VIJAYAPUR-586123
                                          ... RESPONDENTS

(BY SRI GURURAJ V. HASILKAR, HCGP FOR R1;
 SRI SIDDARTH M. RANE, ADVOCATE FOR R2)
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      THIS CRIMINAL APPEAL IS FILED UNDER SECTION               14-A
OF SC/ST (PA) ACT PRAYING TO SET ASIDE THE IMPUGNED
ORDER    DATED     19.08.2021   PASSED     IN   CRL.    MISC.       NO.
876/2021 BY THE II ADDL. SESSIONS JUDGE AT VIJAYAPUR,
AND     TO   GRANT       THE     REGULAR        BAIL     TO         THE
APPELLANT/ACCUSED       IN     SPL.CASE    (SC/ST)      NO.32/2021
(BABALESHWAR       P.S.FIR     (CRIME)NO.59/2021)        FOR        THE
OFFENCES PUNISHABLE UNDER SECTIONS 376(2)(N), 448,
354, 504, 506 OF IPC AND SECTION 3(2)(va) OF SC/ST (PA)
AMENDMENT     ACT-2015,      PENDING      ON    THE    FILE    OF    II
ADDITIONAL DISTRICT AND SESSIONS COURT AT VIJAYAPUR,
DIST. VIJAYAPUR.


       THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:


                         JUDGMENT

This appeal is filed under Section 14A(2) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Amendment Act, 2015 (hereinafter for brevity

referred to as 'the Act'), seeking to set aside the impugned

order dated 19.08.2021 passed in Crl.Misc. No.876/2021

by the II Additional Sessions Judge at Vijayapur and to

enlarge the appellant/accused on bail in Spl.Case (SC/ST)

No.32/2021 (FIR (Crime) No.59/2021) of Babaleshwar

Police Station, District Vijayapur, for the offences

punishable under Sections 376(2)(n), 448, 354, 504, 506

of IPC and Section 3(2)(va) of the Act.

2. Heard the learned counsel for the appellant

and learned High Court Government Pleader for the State.

3. The factual matrix of the case is that the victim

girl had lodged a complaint with the respondent police

stating that she was having acquaintance with this

petitioner and on the guise of promise to marry her, he

had sexual intercourse with her and continued the same

and later on he had turned hostile and refused to marry

her and caused threat that sexual act was video graphed

and later demanded to pay an amount of `10,00,000/- in

order to avoid screening of video in the social media. It is

also alleged in the complaint that he refused to marry her

since she belongs to Beda community and he had loved

her only to do sexual intercourse and she is meant for

that. Based on the complaint, the police have registered

the case for the offences punishable under Sections

376(2)(n), 448, 354, 504, 506 of IPC and Section 3(2)(va)

of the Act.

4. The learned counsel appearing for the

appellant would submit that a false case has been

registered against this appellant making false allegation

that she was not subjected to any sexual act as alleged in

the complaint. The learned counsel for the appellant also

brought to the notice of this Court that the victim girl has

refused to do medical examination and apart from that,

the counsel also filed a memo with documents that victim

herself filed the objection to the appeal before the

Sessions Judge wherein she has stated that at the instance

of her mother, she gave the complaint making allegation

that he had subjected her for sexual act and the said

complaint is given as against her will. Still she is intended

to marry him and hence, prayed this Court to enlarge the

appellant on bail.

5. Per contra, learned High Court Government

Pleader for the State would submit that the victim herself

has given the complaint making allegation of subjecting

her for sexual act and the statement under Section 164 of

Cr.P.C., was recorded before the Magistrate wherein she

has also reiterated the averments of the complaint and

the learned counsel would also submit that alleged

statement of objection filed before the Sessions Judge is

not out of knowledge of the victim but the same is created.

The counsel for respondent had filed the statement of

objection opposing this petition wherein also reiterated the

contents of the complaint and statement under Section

164 of Cr.P.C., and also in the statement of objections filed

by the respondent No.2, he further contended that there is

a life threat to the complainant.

6. Having heard the learned counsel for the

appellant and the learned High Court Government Pleader

for the State and also on perusal of material, no doubt, in

the complaint an allegation is made against this petitioner

that he subjected her for sexual act on the promise to

marry her. The documents which have been placed before

the Court disclose that Casualty Medical Officer, District

Hospital, Vijayapura made an endorsement that medical

examination is incomplete as the complainant denied

genital examination and on perusal of this report it is clear

that no medical examination was done with regard to

whether she was subjected to sexual act or not. Apart

from that, the documents which have been relied upon by

the learned counsel for the appellant and statement of

objections filed before the trial Court contains the

signature of the victim girl wherein she has stated that she

was not subjected to any sexual act and the said complaint

was given at the instance of her mother. No doubt, in the

statement recorded under Section 164 of Cr.P.C., before

the learned Magistrate, she has reiterated the contents of

the complaint, but there is no medical evidence on record

to ascertain whether she was subjected to sexual act or

not. The medical evidence is incomplete as she refused to

give consent for genital examination. When such being the

facts and circumstances of the case and also considering

the peculiar circumstances of the case, I am of the opinion

that this is a fit case to exercise power under Section 439

of Cr.P.C., since the victim girl is aged about 26 years and

as to whether she was subjected to sexual act or not has

to be considered only during the course of the trial.

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

the following:

ORDER

The appeal is allowed. Consequently, the

appellant/accused shall be released on bail in

Spl.Case.(SC/ST) No.32/2021 (Crime No.59/2021 of

Babaleshwar Police Station) pending on the file of II-

Additional District and Sessions Court at Vijayapur, for the

offences punishable under Sections 376(2)(n), 448, 354,

504, 506 of IPC and Sections 3(2)(va) of the SC/ST (PA)

Amendment Act, 2015, subject to the following conditions:

(i) The appellant shall execute his personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two sureties for the like-sum to the satisfaction of the jurisdictional Court.

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

(iii) The appellant shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the Court for any genuine cause.

(iv) The appellant shall not leave the jurisdiction of the Trial Court without prior permission of the Court till the case registered against him is disposed of.

Sd/-

JUDGE

VNR/NB*