Karnataka High Court

Mr Vinod vs State Of Karnataka on 25 February, 2022

Bench: K.S.Mudagal

                                          CRL.A.No.200/2022
                                      C/w Crl.A.No.1667/2021

                            1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 25TH DAY OF FEBRUARY 2022

                        BEFORE

        THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

         CRIMINAL APPEAL NO.200/2022
                     C/W
         CRIMINAL APPEAL NO.1667/2021
CRL.A.NO.200/2022
BETWEEN:

SRI.MURTHY ALIAS NARASIMHAMURTHY
S/O BALAPPA
AGED ABOUT 21 YEARS
R/AT: ADDEKOPPA VILLAGE
GOWDAGERE POST
MANCHENAHALLI HOBLI
GAURIBIDANUR TALUK - 561 211
CHIKKABALLAPUR DISTRICT                   ...APPELLANT

(BY SRI.S.A.KHADRI, ADV.)

AND:

1.     STATE OF KARNATAKA
       REPRESENTED BY ITS SHO
       MANCHENAHALLI POLICE
       GAURIBIDANUR TALUK - 561 211
       CHIKKABALLAPUR DISTRICT

2.     B.KAVYA
       D/O BALAKRISHNA
       AGED ABOUT 14 YEARS
       R/AT ADDEKOPPA VILLAGE
       MANCHENAHALLI HOBLI
                                               CRL.A.No.200/2022
                                          C/w Crl.A.No.1667/2021

                             2


       GAURIBIDANUR TALUK - 561 208
       CHIKKABALLAPUR DISTRICT           ...RESPONDENTS
(BY SRI.V.S.HEGDE, S.P.P. - II AND
    SMT.RASHMI JADHAV, HCGP FOR R1; R2 SERVED)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 14(A)
(2) OF SC/ST (POA) ACT, 2015 READ WITH SECTION 374 OF
CR.P.C. PRAYING TO SET ASIDE THE ORDER PASSED BY THE
ADDL. DISTRICT AND SESSIONS JUDGE, FTSC-1 AT
CHIKKABALLAPURA         DATED        22.09.2021        IN
CRL.MISC.NO.1000/2021,   SPL.SC.NO.99/2021     FOR   THE
OFFENCES PUNISHABLE UNDER SECTIONS 376(2)(i)(n) OF IPC
AND UNDER SECTIONS 4,5(J)(II),5(L),6 OF POCSO ACT AND
UNDER SECTIONS 3(1)(W), 3(2)(V) OF SC/ST (POA) ACT ETC.

CRL.A.NO.1667/2021:
BETWEEN:

1.     MR.VINOD
       S/O NAGAPPA
       AGED ABOUT 23 YEARS

2.     MR.RAJESH
       S/O NARASIMHA MURTHY
       AGED ABOUT 22 YEARS

3.     MR.NARASIMHAMURTHY
       S/O BALAPPA
       AGED ABOUT 23 YEARS

       ALL ARE R/AT ADDEKOPPA VILLAGE
       MANCHENAHALLI HOBLI
       GOWRIBIDANUR TALUK
       CHIKKABALLAPUR - 561 211              ...APPELLANTS

(BY SRI.K.GOVINDARAJ, ADV. FOR SRI.P.NEHRU, ADV.)

AND:

1.     STATE OF KARNATAKA
       REP. BY S.H.O MANCHENAHALLI P.S
                                                            CRL.A.No.200/2022
                                                       C/w Crl.A.No.1667/2021

                                    3


       CHIKKABALLAPUR-561 211
       REP. BY HCGP
       HIGH COURT COMPLEX
       BENGALURU - 560 001

2.     BALAKRISHNA
       S/O KADIRAPPA
       AGED 45 YEARS,
       R/AT ADDEKOPPA VILLAGE
       MANCHENAHALLI HOBLI
       GOWRIBIDANUR TALUK
       CHIKKABALLAPUR-561 211.                         ...RESPONDENTS

(BY SRI.V.S.HEGDE, S.P.P. - II AND
     SMT.RASHMI JADHAV, HCGP FOR R1;
     R2 SERVED)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 14(A)
(2) OF SC/ST (POA) ACT, 2015 PRAYING TO SET ASIDE THE
ORDER PASSED BY THE ADDL. DISTRICT AND SESSIONS
JUDGE, FTSC-1 AT CHIKKABALLAPURA DATED 22.09.2021 IN
CRL.MISC.NO.1000/2021,   SPL.SC.NO.99/2021     FOR   THE
OFFENCES PUNISHABLE UNDER SECTIONS 376(2)(i)(n) OF IPC
AND UNDER SECTIONS 4, 5(J)(II), 5(L), 6 OF POCSO ACT AND
UNDER SECTIONS 3(1)(W), 3(2)(V) OF SC/ST (POA) ACT ETC.

      THESE CRIMINAL APPEALS COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

Aggrieved by the rejection of their bail application,

accused Nos. 2, 3, 6 and 7 in Spl.S.C.No.99/2021 on the

file of Additional District & Sessions Judge-FTSC-1,

Chikkaballapur have preferred the above appeal.

CRL.A.No.200/2022 C/w Crl.A.No.1667/2021

2. The appellants are facing trial in

Spl.S.C.No.99/2021 before the trial Court for the offences

punishable under Section 376(2)(i)(n) of IPC and under

Sections 4, 5(j)(ii), 5(l) and 6 of the Protection of Children

from Sexual Offences Act 2012. ('POCSO Act' for short)

and under Sections 3(1)(w), 3(2)(v) of the Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities)

Amendment Act, 2015 ('SC & ST Act' for short) on the

basis of the charge sheet filed by the Manchenahalli police

in Crime No.110/2021 of their police station.

3. The case of the prosecution is as follows:

CW.1 the victim girl was aged 13 years. Her parents

were the labourers and alcohol addicts. Everyday they

used to return home drunk and abuse her. She was fed up

with that. During that time accused No.1 who was the

neighbour used to pacify her by giving snacks and other

things. Accused No.1 was the sex worker. Taking

advantage of the condition of CW.1, she lured CW.1 to

have sexual relationship with other accused for gain. In CRL.A.No.200/2022 C/w Crl.A.No.1667/2021

that way accused No.1 subjected the victim to sexual

abuse from 01.02.2021 to 02.07.2021. Accused Nos.2 to 7

committed aggravated sexual assault on CW.1.

Consequently, she conceived. When the Anganavadi

worker visited house of the villagers for Covid-19 test she

found the victim girl carrying 32 weeks pregnancy. On

enquiry the victim girl revealed the incident and filed

complaint.

4. Sri Khadri.S.A and Shri K.Govindaraj, learned

Advocates for the appellants submit that the victim in her

statement before learned Magistrate under Section 164

Cr.PC has implicated only accused No.4. They further

submit that they were implicated in the case due to ill will

of their rival group.

5. Sri V.S.Hegde, learned SPP-II submits that at

the first instance, the victim has implicated all accused,

there was delay in recording the statement of the victim

under Section 164 of Cr.P.C. He submits in her subsequent

statement the victim implicates only accused No.4 Bashir, CRL.A.No.200/2022 C/w Crl.A.No.1667/2021

that shows that there is tampering of witness. He further

submits that considering the object and purport of the

POCSO Act and SC & ST Act and nature of offence, these

are not fit cases to grant bail. He further submits that if

bail is granted, the appellants are likely to tamper the

witnesses more particularly the victim.

6. This Court carefully considered the submissions

of both side and the material on record. On such

consideration and evaluation, the question that arises is

'whether the trial Court was justified in rejecting the bail

application?'

7. The factors that have to be considered in

dealing with the bail application are as follows:

(i) Whether there are reasonable grounds to

believe that the accused has committed the offences

punishable with death or imprisonment for life;

(ii) If bail is granted, whether there is possibility of

the accused tampering the witnesses;

CRL.A.No.200/2022 C/w Crl.A.No.1667/2021

(iii) Whether it is possible to secure the accused for

trial.

8. So far as prima-facie case, the allegations

against the appellants is that accused No.1 luring the

victim CW.1 minor girl deployed her in flesh trade. Further

allegations against the appellants are that they sexually

abused the victim.

9. The alleged sexual abuse was between

01.02.2021 and 02.07.2021. The complaint is purportedly

submitted before Sub-Inspector of Police of Manchenahalli

police station on 02.07.2021 at 3.00 p.m. The statement

of the child was not recorded before local Child Welfare

Committee.

10. The statement of the victim child under Section

164 of Cr.PC. was recorded after 20 days on 22.07.2021.

Though in the complaint the victim purportedly implicated

the appellants, in her statement under Section 164 of CRL.A.No.200/2022 C/w Crl.A.No.1667/2021

Cr.P.C. before learned Magistrate she implicates only

accused No.4 Bashir as sexual abuser.

11. The statement of the child under Section 164

of Cr.P.C. was recorded when she was under institutional

care. The appellants were arrested on 03.07.2021. The

child's statement under Section 164 of Cr.P.C. was

recorded after 19 days of their arrest. Therefore, at this

stage it goes difficult to assume that the appellants

wielded influence while the victim giving the statement

before learned Magistrate under Section 164 of Cr.P.C.

12. As a result of sexual abuse, the victim

conceived and she delivered child. Learned SPP-II submits

DNA test report for perusal of this Court. As per the said

report, none of the appellants were found to be biological

father of the child.

13. This Court has to balance between liberty of an

individual and cause of victim. Circumstances discussed

above more particularly the statement of the victim under CRL.A.No.200/2022 C/w Crl.A.No.1667/2021

Section 164 of Cr.P.C at this stage do not lead to

reasonable ground of belief that the appellants have

committed the offences alleged against them. With such

material, if they are subjected to pre-trial conviction and

sentence and ultimately if they are acquitted, position

becomes irreversible and their period of detention cannot

be reimbursed. Under the circumstances, these are fit

cases to grant bail with stringent conditions. Therefore the

appeals are allowed.

The appellants are granted bail in Crime

No.110/2021 which is now pending in Spl.S.C.No.99/2021

on the file of Additional District & Sessions Judge-FTSC-1,

Chikkaballapura subject to the following conditions:

(i) Appellants shall execute personal bonds in a sum of Rs.25,000/- and furnish two sureties in the like sum to the satisfaction of the trial Court.

(ii) They shall appear before the Court as and when required for trial.

CRL.A.No.200/2022 C/w Crl.A.No.1667/2021

(iii) They shall not tamper the prosecution witnesses in any manner.

(iv) They shall mark their attendance before the SHO of respondent-Police station on alternate Sunday of each month till the evidence of C.W.1 is completed.

(v) Till the evidence of CW.1 victim girl is concluded, the appellants shall not visit Addekoppa Village, Manchenahalli Hobli, Gowribidanur Taluk, Chikkaballapura District.