Sathya G S/O Giri vs State Of Karnataka
2022 Latest Caselaw 11356 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 12 T H DAY OF AUGUST, 2022

                        BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

       CRIMINAL APPEAL NO.1222 OF 2022

BETWEEN:

Sathya G S/o Giri
Aged about 44 years
R/at No.110, 2 n d E Main
VIII Block, Koramangala
Beng aluru - 560 095
                                        ...Appellant
(By Sri G.Manivannan, Advocate)

AND:

1.   State of Karnataka
     H.S.R.Layout Police Station
     27 t h Main Road , 1 s t Sector
     H.S.R.Layout, Beng aluru-560 102

     Represented by
     State Pub lic Prosecutor
     Hig h Court of Karnataka
     Hig h Court Build ings
     Beng aluru - 560 001

2.   Kum. xxx
     D/o Samp angi
     Aged about 16 years
     Minor rep resented by her
     Father & Natural Guardian
     Samp ang i
     S/o Narayanaswamy
     Aged about 45 years
     Both are R/at Muniyamma's house
     Annammanap alya
                             :: 2 ::


     Hosapalya, Bemmanahalli
     Beng aluru - 560 102
                                                  ...Respondents
(By Sri K. Rahul Rai, HCGP for R1;
 R2-served - unrep resented)

     This     Criminal   Appeal      is   filed   under    Section
14(A)(2) of SC/ST (POA), praying to set asid e the
order d ated 20.06.2022 in Crl.Misc.No.5486/2022 on
the file of the Additional City Civil and Sessions Judge,
FTSC-III,   Beng aluru    and   to    enlarg e    the   app ellant/
accused No.3 on bail in Spl.C.No.990/2022 for the
offence under Section 4, 6 and 17 of POCSO Act and
Sections 363, 342, 376(3), 506, 109, 370, 370A and
201 read with Sections 35, 37 and 38 of IPC and
Section 3(2)(v) of SC/ST (POA) Act.

     This Criminal Appeal coming on for admission
this d ay, the Court d elivered the following:

                         JUDGMENT

This appeal is filed under Section 14A of the

Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act ['SC/ST (POA) Act'

for short]. Appellant is accused No.3 in Spl. Case

No.990/2022 on the file of Addl. City Civil and

Sessions Judge and FTSC-III, Bengaluru. Since his

application under Section 439 Cr.P.C., was :: 3 ::

rejected by the trial court by order dated

20.06.2022, this appeal has been preferred.

2. The appellant and other accused are facing

trial for the offences under sections 363, 342,

376(3), 506, 109, 370, 370A and 201 IPC r/w

sections 35, 37 and 38 of IPC and sections 4,6 and

17 of POCSO Act r/w section 3(2)(v) of SC/ST

(POA) Act and sections 3,4 and 6 of Immoral

Traffic (Prevention) Act and sections 75, 77 and 84

of Juvenile Justice (Care and Protection of

Children) Act, 2015.

3. Heard Sri. G.Manivannan, counsel for the

appellant and the Government Pleader for

respondent no.1. Respondent no.2 has been

served with notice, but she has not appeared

before the court.

4. The prosecution case is that when the

victim girl started going to the house of accused

No.1 to learn tailoring, she was forced to gratify :: 4 ::

the sexual desires of the customers of first

accused. Accused no.2 is the friend of accused

no.1 and she too was involved in the same type of

activity. The appellant herein is one of the

customers of accused No.1 and 2. So far as the

appellant is concerned, it is stated that when the

victim girl went to the house of first accused on

03.03.2022, she closed the door of her house and

allowed the appellant to have intercourse with the

girl. It is alleged that the appellant asked the girl

to remove her clothes and when she refused, he

threatened to burn her body with burning

cigarette. Thus she was made to remove her

clothes and subjected to forcible intercourse by

the appellant.

5. It is argued by Sri G.Manivannan that the

statement of the victim girl cannot be per-se

believed because when she gave report to the

police for the first time on 06.03.2022, she did not :: 5 ::

take the name of the appellant. On 08.03.2022,

at 10.00pm, she gave further statement and only

at that time she took the name of the appellant

stating that on 03.03.2022, she had been sexually

exploited by the appellant. He also refers to

statement given by the girl under Section 164 of

Cr.P.C., to argue that while giving statement she

stated that on 04.03.2022, the appellant had

forcible sexual intercourse with her. Therefore

according to him the dates are very important in

the sense that the variation in her statements in

regard to the dates can be considered to opine

that she has not come out with truth. The very

fact that she did not take the name of the

appellant while giving complaint to the police on

06.03.2022 is itself sufficient to come to

conclusion that the entire case is falsehood. He

also submits that in the first report dated

06.03.2022, she stated that on 28.02.2022, she

went to the house of first accused and at that :: 6 ::

time, she was subjected to intercourse by a man,

but while giving further statement, she gives a

different date stating that on 07.02.2022, she had

been to the house of the first accused. This is yet

another inconsistency in the statement which

would falsify the case of the prosecution and

thereby it can be inferred that there are no prima-

facie materials against the appellant. He also

submits that accused 1 and 2 have been admitted

to bail; charge sheet has already been filed; the

appellant is ready to appear before the trial court

without committing default and for all these

reasons he is entitled to be admitted to bail. He

also further submits that the police have falsely

registered the case under the provisions of SC/ST

Act. What is forthcoming is sexual exploitation

and not a caste based attack. Therefore he argues

for allowing the appeal.

:: 7 ::

6. Learned High Court Government Pleader

submits that whether inconsistency in mentioning

the dates in the statements is material or not, is

to be decided by the trial court after recording the

evidence and at this stage importance cannot be

given to it. He argues that the statements of the

girl should be believed as they find corroboration

from the medical evidence. The doctor has clearly

mentioned in the report that the girl was subjected

to sexual intercourse. Therefore he argues for

dismissing the appeal.

7. I have perused the materials. It is true

that while giving statements before the police, the

girl has given different dates. If in the first

information report she stated that on 28.02.2022,

she was taken by the first accused to her house

and thereafter she was subjected to sexual

intercourse after she was made to drink mango

juice, while giving further statement, she stated :: 8 ::

that on 07.02.2022, she went to the house of the

first accused. It appears that she has made some

improvements by stating that she went to the

house of second accused where she was asked to

sleep with one Keshavamurthy i.e., accused No.4.

What is important is that when the victim girl

made a report to the police for the first time on

06.03.2022 for registration of FIR, she did not

take the name of the appellant herein. The reason

for omitting his name is not forthcoming. This is

significant at this stage, because, in the further

statement she has stated that on 03.03.2022, it

was the appellant who subjected her to sexual

exploitation in the house of the first accused. If

the girl could take the name of first accused on

08.03.2022, definitely as argued by the appellant's

counsel, a doubt arises as to the involvement of

the appellant in the alleged incident. Ofcourse the

doctor has given a report that girl had been

subjected to sexual intercourse, but if the :: 9 ::

materials placed before the court are assessed in

entirety, the circumstances under which the girl

was subjected to exploitation are not free from

doubtful circumstances. In this view, I find that

the decision of the trial court to reject the

appellant's application for bail cannot be

sustained. Though this court denied bail to the

appellant while disposing of Crl.P.No.3342/2022,

the order therein indicates that the appellant was

given liberty to approach the court for bail after

filing of the charge sheet. Now the charge sheet

has been filed. There is change in circumstance.

The appellant's presence before the court for trial

can be secured. Therefore the following:

ORDER

Appeal is allowed.

The order passed by the Additional City Civil and Sessions Judge, FTSC-III, Bengaluru dated 20.06.2022 in Crl.Misc.No.5486/2022 on the :: 10 ::

application of the appellant under Section 439 Cr.P.C., is set aside. The said application is allowed.

The appellant is admitted to bail on obtaining from him a bond for Rs.2,00,000/- (Two lakhs only) and providing two sureties for the likesum to the satisfaction of the trial court. The appellant is also subjected to following conditions:-

i.    He    shall        not     tamper        with      the
      evidence            collected            by        the
      investigating         officer      and     threaten
      the witnesses.

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

iii. Till conclusion of the trial, the appellant shall mark his attendance before the jurisdictional police Station once in 15 days, preferably on a Sunday between 9 am and 12 noon.

iv. He shall not get involved in any other criminal case/s in future. In :: 11 ::

case of any FIR is registered against them, the same will be considered for cancellation of bail.

Sd/-

JUDGE

Sd/Kmv/-