Abhishek G S @ Abhi vs The State Of Karnataka By
2021 Latest Caselaw 3528 Kant

                            1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 26TH DAY OF OCTOBER, 2021

                         BEFORE

 THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

         CRIMINAL APPEAL No.1022 OF 2021


BETWEEN

Abhishek G.S. @ Abhi
Aged about 24 years,
S/o Late Siddaramu,
R/at 3rd Cross, Gowtham Layout,
Near Jayalakshmi Talkies,
Mandya District-571433
                                               ...Appellant
(By Sri K.Hemanth Kumar, Advocate)

AND

1.    The State of Karnataka by
      Mandya Rural Police Station,
      Represented by State Public Prosecutor
      High Court Building,
      Bengaluru-560001.

2.    Smt. Savitha,
      W/o Chandra,
      Aged about 39 years,
      R/at Hanakere Village,
      Kasaba Hobli,
      Mandya Taluk & District-571433.
                                           ...Respondents
(By Sri P.Thejesh, HCGP for R1;
  R2 - Served, Unrepresented)
                              2




       This Criminal Appeal is filed under Section 14(A)(2)
of SC/ST (POA) Act, praying to release the petitioner on
bail in Spl.Case No.71/2021 registered by the respondent
for the offence punishable under Section 363, 354D, 366A
376(3), 376(2) read with 34 of IPC, Section 6, 12 of
POCSO Act and Section 3(1)(w)(i)(ii) of the SC/ST (POA)
Act pending on the file of the Additional District and
Sessions Judge, FTSC-1, Mandya.

      This Criminal Appeal coming on for admission, this
day, the Court delivered the following:

                      JUDGMENT

Heard Sri. K. Hemanth Kumar, learned counsel

for the appellant and the Government Pleader. The

2nd respondent is served with notice, but there is no

representation on her behalf.

2. This is an appeal filed under Section 14(A) (2)

of the SC/ST (Prevention of Atrocities) Act,

challenging the order dated 23.6.2021 passed by

Addl. District and Sessions Judge and FTSC-I, Mandya

in Spl.C.No.71/2021, rejecting the appellant's

application under Section 439 Cr.P.C.

3. The appellant is facing trial for the offence

punishable under Sections 363, 345(D), 366(A),

376(3), 376(2)(N) r/w 34 IPC, Section 6 and 12 of

POCSO Act and Section 3(1)(w)(i)(ii) of SC/ST

(Prevention of Atrocities) Act. The facts are like this.

4. On 17.02.2021, the 2nd respondent made a

report to the police against the appellant complaining

sexual abuse of her daughter by the appellant. On

this basis, FIR came to be registered in Cr.No.67/2021

for the above said offences.

5. It is to be stated that 2nd respondent lodged

an FIR after her daughter returned to the house.

During investigation, the statement of the girl under

Section 164 Cr.P.C. was recorded. It shows that the

appellant developed acquaintance with the girl when

he was painting the school. Gradually, they fell in

love with each other and on 15.2.2021, the appellant

went near the school and took the girl with him. He

took her to Talakad and had sexual intercourse with

her amidst the bushy plants on the bank of the river.

She returned home on the next day. The 2nd

respondent has also given the statement before the

Magistrate under Section 164 Cr.P.C., which shows

that on 16.2.2021, she received telephone call from

the teacher of the school where her daughter was

studying and came to know that her daughter had not

attended the school for last two days. When she

came back to her home at about 6.00 p.m., she

enquired her daughter as to why she had not attended

the school and then beat her. Her husband also beat

her. The 2nd respondent went to a shop and her

husband went out of the house to tether the cattle.

When she returned home at 7.45 p.m. from the shop

her daughter was not seen in the house. On the next

day morning at 8 O'clock, somebody told her that her

daughter was found near the railway station, Mandya.

She went there and took her daughter to the Police

Station. There she revealed that on 15.2.2021, the

appellant had taken her to Talakad and touched her

body.

6. The medical report shows that the girl is used

to the act of sexual intercourse.

7. Therefore from the evidence collected by the

investigating officer during investigation, it becomes

clear that probably the appellant might have had

sexual intercourse with her. It is true that the age of

the girl on the date of incident was 13 years, but it

remains a fact that they were in love with each other

and it appears that the girl had voluntarily gone with

the appellant. The trial court appears to have rejected

the application for bail, mainly on the ground of age of

the girl and the medical report indicating the girl being

subjected to sexual intercourse. It is to be stated that

though the age of the girl is 13 years, the love affair

between them cannot be ruled out. In case the

prosecution is able to establish its case, the appellant

may be punished in accordance with law. But no

purpose will be served if the appellant is detained in

custody. If his presence can be secured before the

court during trial, and if there is no chance of

meddling with the prosecution witnesses, bail can be

granted. It is submitted now that the appellant is the

only bread earning member in the family, because his

father died recently during Covid-19 period. In this

view, I do not find any impediment for granting bail by

setting aside the impugned order. Hence the

following:

ORDER

Appeal is allowed. The impugned order is set

aside. It is ordered that the appellant shall be

admitted to bail on obtaining from him a bond for a

sum of Rs.1,00,000/- and providing two sureties for

the likesum to the satisfaction of the trial court. He is

subjected to the following conditions:

a. He shall not tamper with the evidence and threaten the witnesses.

b. He shall regularly appear before the trial court till conclusion of the trial.

c. He shall not get involved in any criminal case.

           d. He shall mark his attendance
              in       the   respondent     police
              station once in 15 days, on a
              Sunday in between 9.00 AM
              and 12 noon, till conclusion
              of trial.



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                                   JUDGE
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