Karnataka High Court
Basavaraj S/O Ramappa Itagi vs The State Of Karnataka on 1 July, 2022
Bench: K.Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1ST DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.100068/2022
BETWEEN
BASAVARAJ S/O RAMAPPA ITAGI,
AGE. 24 YEARS, OCC. COOLIE,
R/O. BALAGERI, TQ. KUKANUR,
DIST. KOPPAL 583102.
.....APPELLANT
(BY SRI S.S. YADRAMI, ADV. FOR
SRI GIRISH V BHAT, ADV.)
AND
1. THE STATE OF KARNATAKA
BY YELURGA POLICE,
REPRESENTED BY
ADDITIONAL STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH 580011
2. HANAMAPPA S/O KALLAPPA MYAGALAMANI,
AGE. 60 YEARS, OCC. COOLIE,
R/O. KALLUR, TQ. YELBURGA,
DIST. KOPPAL 583102.
.....RESPONDENTS
(BY SMT GIRIJA S. HIREMATH, HCGP FOR R-1
SRI ANAND R. KOLLI, ADV. FOR R-2)
THIS CRIMINAL APPEAL IS FILED U/S 14 (A) (2) OF SC AND ST
(POA) ACT, 1989, SEEKING TO ALLOW THE APPEAL AND ORDER TO
RELEASE THE APPELLANT ON BAIL IN SPECIAL S.C. POCSO (AC)
2
NO.35/2021 ON THE FILE OF ADDITIONAL DISTRICT AND SESSIONS
JUDGE FTSC-1 KOPPAL FOR THE ALLEGED OFFENCES U/S 342, 363, 376
AND 506 OF IPC AND SECTION 6 OF POCSO AND SECTION 3(1) (r), 3(1)
(s), 3(2) (5a) OF SC AND ST (PA) ACT.
THIS APPEAL COMING ON FOR ORDERS THROUGH PHYSICAL
HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by accused under Section 14A(2) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred to as 'the SC/ST Act', for
short) for grant of bail in Special S.C. POCSO (AC) No.35/2021 on
the file of Additional District and Sessions Judge FTSC-1, Koppal in
respect of Yelburga Police Station Crime No.107/2021 for the
offence punishable under Sections for the offences punishable
under Sections 342, 363, 376 and 506 of Indian Penal Code, 1860
(hereinafter referred to as the 'IPC', for short) and Section 6 OF
Protection Of Children from Sexual Offences Act, 2012 (hereinafter
referred to as the 'POCSO Act', for short) and under Section 3(1)
(r), 3(1) (s), 3(2) (5a) of SC/ST Act.
2. Heard the arguments of the learned counsel for
appellant and learned High Court Government Pleader for
respondent No.1 and learned counsel for respondent No.2.
3. The case of the prosecution is that one Hanumappa,
father of the victim girl aged about 17 years 10 months filed a
complaint to the police on 09.10.2021 alleging that about six
months prior to the incident, the accused said to be taunting his
daughter for loving him and also threatening her to love him. He
was always following her. In spite of advice, the accused did not
mend the way. That on 07.10.2021, the complainant went to
Durgadevi temple at that time, his daughter went to grazing the
cattle but she did not return till 6.00 p.m. Therefore, the
complainant went for searching his daughter but she was not found.
Later she came to the house on 08.10.2021 at 8.30 p.m. and on
enquiry, she stated that accused dragged her and he had 3-4 times
sexually intercourse with her inspite of her resistance under the
guise of love affair and threatened her not to disclose the same to
anybody. After registering the case, police arrested the accused on
10.10.2021. The bail petition filed by the appellant came to be
rejected by the Sessions Court. Therefore, he is before this Court.
4. Learned counsel for the appellant contended that the
appellant is the innocent of the alleged offences. The age of the
victim is 18 years and she has attained the age of majority. She
has consented for cohabitation for 3 to 4 times and it cannot be
considered that it was under force. This Court in various similar
cases has granted bail. The appellant is ready to abide by any
conditions imposed by the Court. Hence, he prayed for grant of
bail.
5. Per contra, learned High Court Government Pleader
seriously objected for grant of bail and contended that the age of
the victim as per the school records is below 18 years and under
the definition of IPC, it is rape and also her willingness or consent is
immaterial. Hence, she prayed for dismissal of the appeal.
6. Learned counsel for respondent No.2 also objected for
grant of bail as the victim is a minor.
7. Having heard the arguments of the learned counsel for
appellant and learned High Court Government Pleader for
respondent No.1, perused the records. On perusal of the same, it
reveals that admittedly, the appellant said to be belongs to different
caste and the victim belongs to SC/ST community. The complainant
who is the father of the victim has stated that accused was
wandering behind his daughter and in spite of advice, he was
forcing her to love him. Thereafter, on 07.10.2021, when the
victim went to grazing the cattle, the accused forcibly took her and
committed rape on her. The victim in her statement before the
learned Magistrate recorded under Section 164 of Cr.P.C.
categorically stated that the accused dragged her to the farm land
where he raped her forcibly. Then their parents came and took her
back to the home. She has intimated the same to the police. Apart
from the statement of the victim under Section 164 of Cr.P.C., the
medical certificate of the victim reveals that her age is 17 years
though her mother stated her age is 18 years. The medical report
reveals that the hymen is ruptured. Even otherwise, she is a child
within the definition of IPC as well as under the POCSO Act.
Though learned counsel for appellant submits that the age of the
victim is 18 years and it has to be decided in the trial, fact remains
that the victim is a minor and her consent and willingness is
immaterial which attracts Section 375 of IPC which is punishable
under Section 376 of IPC apart from the offences punishable under
the SC/ST Act. Therefore, considering the facts and circumstances
of the case, I am of the view that the appellant is not entitled for
bail.
8. Accordingly, the appeal is dismissed.
Sd/-
JUDGE
Naa
