Dodda Pasha @ Dood Basha vs The State Of Karnataka And Anr
2022 Latest Caselaw 839 Kant

                            1




           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 19TH DAY OF JANUARY, 2022

                        BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL NO.200248/2021


BETWEEN:

Dodda Pasha @ Dood Bhasha S/o Imamsab,
Age: 22 years, Occ: Driver,
R/o: Yeluragi Camp, Tq: Sindhanur,
Dist: Raichur-584101.

                                               ... Appellant

(By Sri Shivanand V.Pattanashetti, Advocate)


AND:

1. The State of Karnataka,
   Represented by Addl. SPP,
   Kalaburagi Bench-585107.
   (Through Sindhanur Town P.S.,
   Dist: Raichur-584101)

2. Mariyamma D/o Rangappa
   Age: 18 years, Occ: Household,
   R/o: Yeluragi Camp, Tq: Sindhanur,
   Dist: Raichur-584101.
                                         ... Respondents

(By Sri Sharanabasappa M. Patil, HCGP for R1;
 V/o dated 05/01/2022 notice served on complainant)
                               2




      This Criminal Appeal is filed under Section 14-A of
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities Act-1989), praying to set aside the impugned
order dated:09-08-2021 passed in Spl. Case(A)No.250/
2021 by the Special Court for Cases under the SC/ST(POA)
Act and 1st Addl. Sessions Judge at Raichur and to grant
the regular bail to the Appellant/accused No.1 in Spl. Case
(A) No.250/2021 (Sindhanur Town PS Crime No.42/2021)
for the offences punishable U/S. 143, 147, 148, 323, 324,
448, 376, 504, 506, R/W 149 of IPC & Sec. 4 & 6 of the
POCSO Act, 2012 and Sec. 3(1)(r)(s)(wi), 3(2)(V) of
SC/ST (POA)Act, 2015 pending on the file of Special Court
for Cases Under the SC/ST(POA) Act and 1st Addl. Sessions
Judge at Raichur, Dist: Raichur.


      This appeal coming on for Orders this day, the Court
delivered the following:

                           JUDGMENT

Heard Sri Shivanand V.Pattanshetti learned counsel

for the appellant and the learned High Court Government

Pleader for respondent No.1/State.

2. The present appeal is filed under Section 14A

of the Scheduled Castes and Scheduled Tribes (Prevention

of Atrocities) Act (for short, 'SC/ST (POA) Act') seeking

grant of bail under Section 439 of Cr.P.C.

3. Brief facts which are necessary for disposal of

this appeal are as under:

Upon the complaint lodged by the victim girl,

Sindhanoor police have registered a case against the

accused for the offences punishable under Sections 143,

147, 148, 323, 324, 448, 376, 504, 506 read with

Section 149 of IPC & Section 4 & 6 of the POCSO Act, 2012

and Section 3(1)(r)(s)(wii) and 3(2)(va) of SC/ST (POA)

Act, 2015 pending on the file of Special Court for Cases

Under the SC/ST (POA) Act and investigated the matter.

After completing the investigation, investigation agency

has also filed charge-sheet for the aforesaid offences.

Complaint averments reveal that the complainant was

residing with her family members and her parents were

eking-out their livelihood by doing labour work and they

were residing in Yeluragi camp, Sindhanur. Where they

were so residing in the camp, accused used to visit their

house every now and then and on 28.02.2020 at about

3.00 p.m. when her parents had been to work, accused

came to their house and gagged her mouth and shown a

knife and forcibly committed sexual intercourse with her.

Again on 14.03.2021 the accused had forcible sexual

intercourse with her and on 07.04.2021 accused entered

the house in the 12.00 noon in the mid night with an

intention to have forcible sexual intercourse and at that

juncture her mother woke up from the sleep and enquired

who has entered the house. At that juncture, accused

forcibly pulled the victim girl and when her mother raised

alarm, neighbourers assembled there. A panchayat was

convened and since there was no suitable solution found

out in the said panchayat, a complaint came to be lodged

to the police on 08.04.2021. Police after thorough

investigation laid charge-sheet against the accused for the

aforesaid offences. Accused had approached before the

learned I Addl. Sessions Judge, Raichur for grant of bail

which came to be rejected on 09.08.2021.

4. Learned counsel for the appellant Sri Shivanand

V.Pattanshetti vehemently contended that as on the date

of complaint, victim girl is aged 18 years as could be seen

from the very complaint averments itself and therefore no

provisions of the POCSO Act gets attracted and therefore,

there is no bar for this Court to grant bail. He also pointed

out that even according to the complaint averments, on

earlier to the date of complaint, on two occasions the

accused had forcible sexual intercourse with the victim girl

which shows that it is a consensual sex that the accused

had with the victim girl as they were in love affair.

Therefore, no offence whatsoever is made out so as to

deny the bail to the accused. He also contended that the

continuation of the accused in judicial custody would

amounts to pre trial conviction and sought for grant of bail.

5. Per contra, learned High Court Government

Pleader opposes the grounds of bail petition on the ground

that when the first incident took place, the victim girl was

a minor and therefore even if there was a consent, the

consent is not a consent in the eye of law and therefore

prima facie the provisions of the POCSO Act gets attracted

and which would disentitle the accused from obtaining the

grant of bail. He also argued that victim girl belongs to

scheduled casted community and the accused belongs to

Muslim community and knowingfully well that the victim

belongs scheduled caste community and a minor, accused

had committed a grave act of forcible sexual intercourse

with the accused and therefore gravity of the offence is

increased by a greater extent and therefore sought for

dismissal of the appeal.

6. In the light of the rival contentions, this court

perused the material on record.

7. No doubt from the complaint averments, it is

seen that as on the date of complaint the victim girl is

aged 18 years. However, on two earlier instances, the

accused had committed the forcible sexual intercourse.

8. This court at this stage cannot be hold a mini

trial to find out the veracity of the complaint averments or

the defence taken by the accused. It is for the trial court to

decide the same after full fledged trial.

9. At this stage, from the complaint averments

itself, the date of birth of the victim girl is 25.08.2002 and

according to the to the complaint averments, first time the

accused had committed the forcible sexual intercourse on

28.02.2020. As such, as on the date of first incident, the

victim girl was a minor and the consent if any could not be

treated as a consent in the eye of law as is rightly

contended by the learned High Court Government Pleader.

10. Suffice to say that the material available on

record at this stage would disentitle the accused from

obtaining an order of grant of bail by resorting the power

vested under this court under Section 439 of Cr.P.C and

coupled with Section 14A of the SC/ST (POA) Act.

11. Therefore, for the foregoing discussion, this

court is of the considered opinion that grounds urged in

the appeal are meritless. Hence, the following:-

ORDER

Appeal is dismissed.

Sd/-

JUDGE

sn