P. Kanakaraya @ Kanakaray S/O P. ... vs State
2022 Latest Caselaw 840 Kant

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           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 PETITION NO.201750/2021


BETWEEN:

P. Kanakaraya @ Kanakaraya
S/o P. Mallayay @ Mallappa
Aged about 29 years
R/o 11th Ward, Bagewadi Village
Tq. Siruguppa, Dist: Bellary
                                                ... Petitioner

(By Sri P.G. Yatnal, Advocate)

AND:

State by the Woman PS
East Circle, Raichur
Represented by Spl. Public Prosecutor
High Court of Karnataka
Kalaburagi Bench-585107
                                             ... Respondent

(By Sri Gururaj V. Hasilkar, HCGP)

      This Criminal Petition is filed under Section 439 of
Cr.P.C. praying to enlarge the petitioner on bail in pending
Crime No.69/2021, of the Woman PS East Circle Raichur
on the file of the Civil judge (Jr.Dvn) and JMFC, Raichur,
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for alleged offences punishable Sections 363, 376 and 417
of the Indian Penal Code.

     This petition coming on for orders this day, the Court
made the following:

                         ORDER

Heard Sri P.G. Yatnal, learned counsel for the

petitioner and Sri Gururaj V. Hasilkar, learned HCGP for

the State.

2. The present petition is filed under Section 439 of

Cr.P.C. seeking for grant of bail.

3. The brief facts of the case are as under:

A complaint came to be lodged by Eramma against

the petitioner. Women Police Station, Raichur East Circle

registered a case against the petitioner herein in Crime

No.69/2021 on 13.09.2021 for the offences punishable

under Sections 363, 376 and 417 of IPC. Complaint

averments reveal that the accused is close relative of the

complainant and he had made an offer to marry her. Since

he was visiting the house of the complainant very often,

she had developed intimacy with him. It is further alleged

that when she was pursuing B.E. Civil Engineering, she had

stayed in girls hostel. Accused used to visit her hostel and

used to have conversation with her. On 01.04.2021 at

about 2.00 p.m. accused came near the hostel asking

complainant to visit Mantralaya. She refused for the same

and despite her refusal, he forcibly took her to Mantralaya

and stayed there till night. Despite her repeated requests

to get back to Raichur, he made her to stay in Satya

Lodge. At about 8.30 pm., he brought cold drinks and

after she consumed the same, she was in a semi-conscious

stage. Taking advantage of such situation, accused had

forcible sexual intercourse with the complainant in the

pretext of marriage. Thereafter, she came to know that

the parents of accused are finding alliance for the accused.

Immediately she revealed the incident to her parents and

relatives. They in turn enquired the parents of the

accused. But they refused to marry the complainant and as

such they sought action against the accused.

4. During the course of investigation, accused came

to be arrested. He approached the District Court seeking

grant of bail. The learned Judge, after hearing the parties,

by order dated 18.12.2021 rejected the bail application.

Subsequent thereto the charge is filed and therefore the

petitioner has approached this Court with above petition

for grant of bail.

5. In the bail petition following grounds have been

raised:

7. That, the petitioner is an innocent of the alleged offences.

8. That the respondent registered FIR against the petitioner in a mechanical manner without verifying the true facts and on the basis of vague and unsustainable allegations. All said allegations are baseless and there is laxity of clarity in the complaint. The de facto complainant has filed the said complaint suppressing true facts.

9. Narration of that the accused and the de facto complainant, Miss Eramma are close relatives. Miss Eramma has admitted in her complaint that she is a graduate of Engineering and

the petitioner is an agriculturist. Particularly, she has stated in the complaint " that my nephew Kanakaraya... I fell in love with him as he used to say he would marry me in future. He used to come to our home from my childhood" ("£À£ßÀ CvÉA Û iÀÄ ªÀÄUÀ£ÁzÀ PÀ£PÀ g À ÁAiÀÄ .. £À£U À É F ªÉÆzÀ°AzÀ®Æ ªÀÄzÀĪÉAiÀiÁUÀÄvÉÃÛ £É CAvÁ ºÉýzÀÝjAzÀ £Á£ÀÄ CªÀ£À ¦æÃwUÉ M¦àUÉ ¤ÃrzÀÄÝ, CªÀ£ÄÀ aPÀÌ ªÀAiÀĹì¤AzÀ®Æ £ÀªÀÄä ªÀÄ£ÉUÉ §AzÀÄ ºÉÆUÀÄwÛzÀÝ. CªÀ£À eÉÆvÉ

¸À®ÄUɬÄAzÀ EzÉÝãÀÄ") averment of the de facto

complainant demonstrates that there is a sans- gene and intimate relationship between them.

10. That, the intimate relationship between the petitioner and the de facto complainant continued and they both used to go out and enjoy their life freely. As such, they went for jolly rides and various places and a video record shows that the de facto complainant is riding a bike of the petitioner and the petitioner is pillion rider, who is making the video of it. A Copy of RC card of the vehicle is produced hereby as Annexure-D.

11. That further, the screen shots produced hereby shows that, firstly, the de facto complainant used to make WHATSUP calls to the petitioner frequently and some photos among them shows that they are swiped, when he was half-naked and taking bath and secondly, a photo shows that the petitioner and the de facto complainant are

celebrating birthday. The photographs are produced hereby as Annexure-E.

12.That it is to submit that the de facto complainant and the petitioner are in live-in relationship for last several years and enjoyed their life freely. It is only when, the family members of the de facto complainant opposed the attitude of the de facto complainant, a false complaint was filed against the petitioner, however, the petitioner is an innocent of all allegations made against him and the respondent/complainant police arrested the accused with bare motive to harass him.

13. That the allegations of the de facto complainant that it was the accused, who compelled her to come to Mantralaya on 01.04.2021 is a false story and said concocted story was revealed after 5 months of alleged incident. If at all the petitioner compelled the de facto complainant to come to Mantralaya on said, she could have informed to her roommates at hostel or police at Raichur or Mantralaya.

14. That delay of 05 months in filing complaint by the de facto complainant, per se, shows that it is after thought and false story built by the de facto complainant only to convene her family members that she is innocent. Further, there is no sufficient

reason given by the de facto complainant for delay in filing the complaint.

15. The petitioner, who is, an agriculturist and rustic villager, wants to live such a life that nobody should point the finger at him and there is no criminality is attributed his life except the allegation made by the de facto complainant and the de facto complainant is highly educated as she is a B.E. Graduate and whereas, the petitioner is a 3rd class pass as it is corroborated by the 10th and PUC-2 marks of the petitioner are produced hereby as Annexure-F and G.

16. That the averments of the complaint made above shows that the petitioner is a close relative of the de facto complainant and there is a cordial and intimate relationship between them. It presupposes that there is no overt act by the petitioner and if at anything happened between the de facto complainant and the petitioner on 01.04.2021 was nothing but a consensual one.

17. It is submitted that the petitioner had earlier preferred a Criminal Miscellaneous Petition before the Hon'ble District and Sessions Judge, Raichur, Hon'ble court by order dated 18.12.2021 in Crl.Misc.No.1376/2021 the same came to be dismissed by Hon'ble court with erroneous findings

Hon'ble court and did not apply its mind to peculiar facts of the case. More particularly, the Hon'ble Court below went on to observe in paragraph 14 of the judgment as "...just because, she was in the company of the petitioner does not mean to say that she had consented for intercourse with for satisfaction of her lust. ...because at the time having his intercourse with her he made her to believe he will marry her as he is her relative. Only after satisfaction of his lust he started to search another bride to marry..." is an unacceptable observation under the law of land and ought not to be formed by the Hon'ble Court at this stage. Such an observation certainly prejudices the mind of the trial court and no fair trial is expected by the petitioner. Thus, the order of the court is not a speaking order and it has no validity in law.

18. The petitioner is in jail from 28/10/2021 and there is no further requirement of custody of the petitioner.

19. The petitioner is the only son to his father Mallayaya @ Mallappa and said Mallayaya @ Mallappa is also no more. As such, the petitioner is the only bread- earning member in the family of the petitioner. He has an ailing mother at home.

20. That the petitioner is the law abiding citizen and has respectable and strong roots in the society. He hails from respectable families. There are no criminal antecedents as far as the petitioner is concerned.

21. That the petitioner undertakes not to hamper or tamper the prosecution case and would co- operate with the investigating officers for the purpose of completing of investigation as and when required.

22. That the offence alleged against the petitioner is not punishable either with life imprisonment or death penalty.

6. Reiterating the above grounds, Sri P.G. Yatnal

sought for grant of bail.

7. Per contra, Sri Gururaj V. Hasilkar, learned HCGP

opposed the grant of bail contending that after thorough

investigation, police have filed charge sheet against the

accused and the theory of consent cannot be gone into by

this Court at this stage as the same is matter of trial.

8. This Court, in the light of the arguments put forth

by the parties, perused the records carefully. It is a fact

that the accused and the complainant are close relatives.

The documents produced by the petitioner shows that the

petitioner and accused were having close relationship

earlier to the incident. There were number of whatsapp

call made and the victim girl had even celebrated the

birthday of the accused as could be seen from the

photographs. The victim girl was also allowed to ride the

motor cycle belonging to the accused. On the strength of

the above photographs, learned counsel for the petitioner

contended that the incident as alleged by the prosecution

has not taken place and the petitioner and victim did have

a living in relationship and the sexual intercourse is not

forcible and it was a consensual sexual intercourse. He

also pointed out that the victim girl is a B.E. graduate,

whereas the accused has studied upto 10th standard and

therefore the victim girl knew the consequences of

continuation of relationship with the accused and therefore

sought for grant of bail.

9. As rightly pointed out by the learned High Court

Government Pleader, whether at all the act committed by

the accused was a consensual sexual intercourse or

otherwise is a matter that has to be adjudged by the Trial

Court after full-fledged trial.

10. Catena of judicial pronouncements have time

and again ruled that at the time of considering bail

application the courts are not required to hold a mini trial,

as the same may prejudice the case of the parties during

the trial in one way or the other.

11. Suffice it to say that the material available on

record at this stage i.e., the complaint averments clearly

show that the accused had forcible sexual intercourse with

the victim girl and thereafterwards did not marry her

resulting the complaint being lodged against the accused.

12. Whether at all the victim girl was a consenting

party for the sexual intercourse or not is a matter that has

to be decided by the Trial Court, for which purpose the

victim girl is required to enter into the witness box and

depose. Therefore, at this point of time, this Court does

not find any merit in any of the grounds urged in the bail

petition. Accordingly, the following:

ORDER

The petition is rejected.

Sd/-

JUDGE

swk