Sri Durgarao S/O Nageshwar Rao vs State Of Karnataka
2022 Latest Caselaw 5921 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

         DATED THIS THE 1ST DAY OF APRIL, 2022

                        BEFORE

      THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

            CRIMINAL APPEAL NO.100334/2021

BETWEEN

SRI DURGARAO S/O NAGESHWAR RAO,
AGED ABOUT 37 YEARS, AGRICULLTURIST,
R/O.SRIRAMNAGAR, GANGAVATHI TALUK,
KOPPAL DISTRICT 583282.
(PRESENTLY AT JUDICIAL CUSTODY)
                                         .....APPELLANT
(BY SRI DIWAKARA AND ASSOCIATES)


AND

1.     STATE OF KARNATAKA
       BY GANGAVATHI RURAL PS,
       REP BY STATE PUBLIC PROSECUTOR,
       HIGH COURT OF KARNATAKA,
       DHARWAD-580 011

2.     SMT.RENUKA
       W/O HANUMANTHA NERMANVI,
       AGED ABOUT 30 YEARS,
       R/O. GUNTHAKAL CAMP,
       SRI RAMNAGAR VILLAGE,
       GANGAVATHI TALUK,
       KOPPALA-583282
                                        .....RESPONDENTS
(BY SRI V.M. BANAKAR, ADDL. SPP FOR R-1
SRI HEMATHAKUMAR L. HAVARAGI, ADV. FOR R-2)
                                  2




      THIS CRIMINAL APPEAL IS FILED U/SEC. 14(A) (2) OF SC
AND ST (POA) ACT, SEEKING TO SET ASIDE THE IMPUGNED
BAIL ORDER DATED 29.10.2021 IN SC NO. (AC) 54/2021
PASSED BY HON BLE PRL., DISTRICT AND SESSIONS JUDGE AT
KOPPAL (CRIME NO. 202/2021, GANGAVATI RURAL PS) FOR
THE OFFENCES PUNISHABLE U/S 341, 354(A), 354(D), 376,
511, 504 OF IPC R/W 3(1)(r), 3(1)(s), 3(1)(w) AND 3(2)(v) SC
AND ST ACT AND ALLOW THE APPEAL FILED BY THE APPELLANT
AT VIDE ANNEXURE D.


      THIS      APPEAL       HAVING      BEEN       HEARD     AND
RESERVED      FOR JUDGMENT ON 25.03.2022, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:


                             JUDGMENT

The appellant has filed this appeal under Section

14A(2) of Scheduled Caste and Scheduled Tribe

(Prevention of Atrocities) Act, 1989 (hereinafter referred to

as 'SC/ST (POA) Act', for short) for setting aside the

impugned bail order dated 29.10.2021 in S.C.(AC)

No.54/2021 passed by the learned Principal District and

Sessions Judge at Koppal and prayed for allowing the bail

petition filed by the appellant by enlarging him on bail.

2. Brief facts leading to the case are that the

complainant is a married woman and she is residing in

Gunthakal Camp, Sriramnagar, Tq: Gangavathi along with

her husband and other family members. It is the case of

the prosecution that appellant was acquainted with the

complainant/informant and he used to follow her for last

two years and used to tease her. According to the case of

the prosecution, the informant has adviced the appellant in

this regard to improve his conduct and under the

impression that he may improve his conduct, she did not

report the matter to anybody. It is further alleged that on

26.06.2021 at 4.30 p.m., the informant went to attend the

call of nature in a barren land of one Basayya, at that

time, the appellant followed her on a motor bike knowing

fully well that she belongs to SC/ST community, he

attempted to rape her. It is also the contention of the

prosecution that informant has protested and in the tussle,

the appellant himself has sustained injuries and when

informant raised hue and cry, one Hanumesh S/o.

Doddabasappa and Hanumantha S/o. Shivappa rushed to

the spot and pacified the matter. It is alleged that the

appellant has abused the informant with reference to her

caste on the ground that she refused to have sexual

relationship with the appellant though she belongs to

SC/ST community. Later on the informant after discussing

the matter with her husband, lodged a complaint. Then

the Investigating Officer investigated the crime and

submitted the charge sheet against the accused for the

offence punishable under Section 341, 354A, 354(D), 376,

511 and 504 of Indian Penal Code, 1860 (hereinafter

referred to as 'IPC', for short) and under Section 3(1)(r),

3(1)(s), 3(w), 3(2)(v) of SC/ST (POA) Act. The appellant

was arrested on 27.06.2021 and he was remanded to

judicial custody.

3. The appellant has initially filed an appeal in

Crl.A.No.100187/2021 before this Court seeking bail and

by order dated 31.08.2021, this Court dismissed the said

appeal. Now the successive appeal came to be filed on the

ground of changed circumstances.

4. Heard the learned counsel for appellant and

learned Addl. State Public Prosecutor for the State as well

as learned counsel for respondent No.2.

5. Learned counsel for appellant would submit

that the appellant is innocent and he has been falsely

implicated in this case. He would further submit that the

appellant is languishing in judicial custody since the date of

his arrest and investigation is concluded and charge sheet

is laid down and hence, the presence of appellant is no

more required by the investigating agency. He would

further contend that as per the charge sheet, 17 witnesses

are public servants and there is no chance of tampering

the prosecution witnesses and 9 witnesses are relatives of

the complainant/informant. He would further contend

that FSL report produced by the prosecution discloses that

there is no penetration and seminal stain was not detected

and as such, the ingredients of Section 376 of IPC are not

at all attracted. Further, he would contend that the

incorporation of section 511 of IPC itself discloses that no

offence under Section 376 of IPC is made out and medical

report does not establish the offence under Section 376 of

IPC. The Investigating Officer without therebeing final

medical opinion has submitted the charge sheet. He would

submit that the appellant undertakes to abide by the terms

and conditions to be imposed by this Court and further

asserts that his presence is no more required by the

investigating agency.

6. Per contra, learned Addl. State Public

Prosecutor and learned counsel for respondent No.2

opposes the appeal contending that in case appellant is

enlarged on bail by allowing this appeal, there is every

likelihood of tampering the prosecution witnesses and

threatening the witnesses. He would also contend that

CW-2 to CW-9 are eyewitnesses and statement of

complainant clearly discloses the gravity of offence. As

such, they sought for rejection of appeal.

7. Having heard the arguments and perusing the

records, it is evident that appellant has initially approached

this Court in Crl.A.No.100187/2021 and the said appeal

came to be dismissed. Subsequently, he filed bail petition

before the learned District and Sessions Judge seeking

regular bail and the same came to be rejected.

8. Initially, this Court dismissed the appeal on the

ground that investigation is still in progress and

considering the gravity of the offence, it is not proper to

exercise the discretion during the pre-investigation stage.

However, now it is evident that the investigation is

completed and charge sheet has been laid down. It is also

important to note here that Investigating Officer has

submitted charge sheet by incorporating the offence under

Section 376 of IPC. However, along with charge sheet,

FSL report is not submitted and on what basis the

Investigating Officer has come to a conclusion that the

offence under Section 376 of IPC is attracted is not at all

forthcoming. However, learned counsel for appellant has

also produced the FSL final opinion which discloses that

there is no seminal stain detected and this document is not

disputed. Even the averments of the complaint disclose

that there is only an attempt of rape and no rape was

committed as the neighbours rushed to the spot

immediately. No doubt, there are allegations regarding

seeking sexual favour and abusing the victim by referring

to her caste but all these aspects are required to be tested

during the course of the trial since it is evident that the

informant and appellant are acquainted with each other for

two years.

9. Learned counsel for respondent No.2

contended that CW-2 to CW-9 are eyewitnesses to the

incident but after perusal of the statement it is evident

that CW-2, CW-6, CW-7, CW-8 and CW-9 are hearsay

witnesses and they are not eyewitnesses. CW-3, CW-4

and CW-5 are said to have been eyewitnesses to this

incident and their statements disclose that there was only

offence of outraging modesty of complainant. The

allegation does establish that offence under Section 354D

of IPC along with the provisions of SC/ST (POA) Act are

attracted but the ingredients of Section 376 of IPC are not

at all forthcoming and on what basis the Investigating

Officer has incorporated the provisions of Section 376 of

IPC is not at all forthcoming. The FSL report clearly

establishes that there is no sexual assault committed.

Anyhow, Section 511 of IPC is also incorporated. The

appellant is languishing in jail from 27.06.2021 for almost

ten months. The investigation is completed and charge

sheet has been laid down. The presence of appellant is no

more required by the investigating agency. Learned

Sessions Judge has failed to consider all these aspects and

in a mechanical way, rejected the bail petition. The pre

trial conviction is unwarranted and the only precaution to

be taken is regarding availability of the appellant during

the course of the trial and possibility of tampering of the

prosecution witnesses. These apprehensions can be

countered by imposing suitable conditions. Under these

circumstances, I do not find any impediment for allowing

the appeal by setting aside the impugned order and

granting bail to the appellant. As such, the appeal needs

to be allowed and accordingly, I proceed to pass the

following:

ORDER

The appeal is allowed. The impugned order dated

29.10.2021 passed by the learned Principal District and

Sessions Judge at Koppal in S.C.(AC) No.54/2021 is set

aside. The bail petition filed by the appellant under

Section 439 of Cr.P.C. is allowed. The appellant is hereby

directed to be enlarged on bail on his executing a personal

bond in a sum of Rs.1,00,000/- with two solvent sureties

for the likesum subject to the following conditions:

1) The appellant shall not tamper with the prosecution witnesses either directly or indirectly.

2) He shall be regular in attending the Trial Court proceedings unless exempted by the Trial Court by specific order.

3) He shall furnish proof of correct address and shall intimate the Trial Court regarding change of address, if any.

4) He shall co-operate with the Trial Court in speedy trial of the matter.

Sd/-

JUDGE

Naa