Heerthiksing S/O Chamansing ... vs The State Of Karnataka
2022 Latest Caselaw 10658 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

         DATED THIS THE 12TH DAY OF JULY 2022

                            BEFORE

           THE HON'BLE MR.JUSTICE K. NATARAJAN

          CRIMINAL APPEAL NO. 100278 OF 2022


BETWEEN:

HEERTHIKSING S/O. CHAMANSING
SHIKSADAR URF HRUTIKSINGH SIKH
SARDAR S/O. CHAMANSING SIKH
SARDAR, AGED ABOUT 21 YEARS,
OCC: PRIVATE WORK,
R/O. LAKSHMI SINGANKERI, SIKH COLONY,
DHARWAD, DIST. DHARWAD.
                                            ... APPELLANT
(BY SHRI. G. I. GACHCHINAMATH, ADV.)

AND:

1.     THE STATE OF KARNATAKA BY ITS
       VIDYAGIRI POLICE STATION,
       REPRESENTED BY
       STATE PUBLIC PROSECUTOR,
       DHARWAD.

2.     KISHAN S/O. BAGA GOSAVI
       AGED ABOUT 40 YEARS,
       OCC: LABOURER,
       R/O. LAKSHMI SINGANAKERI,
       GOSAVI ONI, DHARWAD,
                                     2




     DIST. DHARWAD.

3.   THE CHILD WELFARE COMMITTEE,
     DHARWAD DISTRICT,
     DHARWAD.
                                                     ... RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1;
 SRI. R. H. ANGADI, ADV. FOR R2;
 R3 - SERVED AND APPEARED)



     THIS APPEAL IS FILED UNDER SECTION 14(A)(2) OF THE SC AND
ST (POA) ACT, SEEKING TO ENLARGE THE APPELLANT ON BAIL IN CRIME
NO.199/2021 OF VINDYAGIRI POLICE STATION, DHARWAD FOR THE
ALLEGED OFFENCE PUNISHABLE UNDER SECTIONS 363, 354, 376 OF IPC
AND SECTIONS 4 AND 6 OF POCSO ACT AND SECTION 3(2)(v) OF SC
AND ST (POA) ACT, 1989.


     THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                             JUDGMENT

This appeal is filed by the appellant/accused under Section

14(A)(2) of the Scheduled Caste and Scheduled Tribes (Prevention

of Atrocities) Act, 1989 (for short 'SC & ST (POA) Act') for setting

aside the order of dismissing the bail petition in Spl. SC/ST

No.5/2022 dated 10.02.2022 on the file of II Additional District and

Sessions and Special Judge, Dharwad in respect of Crime

No.199/2021 registered by the Vidyagiri Police Station for the

offences punishable under Sections 363, 354, 376 of Indian Penal

Code (for short 'IPC') Section 4 and 6 of Protection of Children from

Sexual Offences Act (for short 'POCSO') and Section 3(2)(v) of the

SC & ST (POA) Act.

2. Heard the arguments of the learned counsel for the

appellant, learned High Court Government Pleader for respondent

No.1 and the learned counsel appearing for respondent No.2. The

respondent No.3 served and appeared and submits that she is

engaging the service of learned High Court Government Pleader.

3. The case of the prosecution is that on the complaint

filed by the father of the victim girl by name Kishan before the

Police on 25.11.2021 alleging that his minor daughter aged about

13 years is found missing from home on 24.11.2021.

Subsequently, on 28.11.2021 the Police said to have apprehended

the victim and the accused and both were subject to the medical

examination and subsequently the appellant was remanded to

judicial custody. The appellant approached before the Session

Court for grant of bail, which came to be rejected. Hence, the

appellant is before this Court.

4. The learned counsel for the appellant contended that

the appellant is innocent of the alleged offences and he has been

falsely implicated in this case. Even otherwise, the case of the

prosecution is based as per the statement of the victim that she

herself voluntarily went along with the accused and both of them

wanted 2-3 days in various places and it cannot be said that the

accused abducted the victim girl from the custody of her parents.

The investigation is already completed and the charge sheet has

been filed. The medical examination report by the doctor clearly

reveals that the hymen is intact. In this case the commission of

rape is ruled out and therefore prayed for grant of bail.

5. Per contra, the learned High Court Government Pleader

seriously objected the bail petition and contended that the age of

the victim is 13 years she is very minor age as per the provisions of

POCSO Act and even if she goes along with the accused/appellant

by consent, her concern is immaterial. The victim categorically

stated that the accused committed rape on her in the relative's

house of the accused. Still the RFSL report is pending, since there

was bleeding in her vagina apart from discharge strains, therefore

RFSL report is very necessary for deciding the matter. Hence, she

prayed for dismissal of the appeal.

6. The learned counsel appearing for respondent No.2 also

objected the appeal and contended that the accused and victim girl

are residing in the same locality. If the appellant is granted bail, he

will tamper the prosecution witnesses and further contended that

the date of birth of the victim is 15.08.2008 is 13 years. Hence, he

prayed for dismissal of the appeal.

7. The respondent No.3 engaging the service of the

learned High Court Government Pleader once again objected that

the appellant is not entitled for grant of bail.

8. Having heard the arguments of the learned counsel for

appellant, learned High Court Government Pleader for respondent

Nos.1 and 3 and learned counsel appearing for respondent No.3.

9. Of course the father of the victim has given missing

complaint when she went out from the house and she was missing

from 24.11.2021. During the investigation the Police traced the

victim as well as the appellant near Ramdurg and they were taken

to the custody. The appellant and the victim also subject to the

medical examinations. The statement of the victim has been

recorded by the Police, where she has categorically stated that the

accused was taunting her for last two year for loving him and asked

her to come out of the house, on the said day she went along with

the accused, when she questioned him as where he was taking her,

he said he will tell later and asked her to come out of the house.

Accordingly, she went along with the accused and the accused said

to be committed sexual assault on her and thereafter she request

the accused to took her back to home but he was refused and take

her to various places and got married and stayed for 3-4 days in his

relatives house. The Police traced the victim as well as the

appellant and brought to the Dharwad Police Station. The

statement of the victim has been recorded under Sections 161 as

well as 164 of Cr.P.C. The victim though went along with the

accused but he has enticed her for marrying with him and also take

her to the various placed and committed sexual assault on her.

10. Of course the medical examination report reveals that

the hyman is intact, however there was similar stains of blood were

present which were collected for chemical examination. The RFSL

report yet not received. As the contention of the learned counsel

the age of the victim is upto 18 to 21 years but as per the doctor

the age of the victim is 13 to 16 year and as per the school records

her date of birth is 15.08.2008 which comes to 13 years 03 months

on the date of the incident. Therefore, the contention of the

learned counsel for the petitioner cannot be acceptable that she is

major and she has given consent. Since the victim is minor below

the age of 18 years and her concern and willingness is immaterial

which amounts to rape as well as abducting from the lawful custody

of her parents. Therefore until receipt of the RFSL report, the

appellant/accused is not entitled for grant of bail.

11. Accordingly, the appeal is hereby dismissed.

Sd/-

JUDGE

SMM