Shri. Ramesh S/O Maruti Kodli vs The State Of Karnataka
2022 Latest Caselaw 8697 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

           DATED THIS THE 14th DAY OF JUNE 2022

                            BEFORE

            THE HON'BLE MR.JUSTICE K. NATARAJAN

             CRIMINAL APPEAL NO. 100159/2022


BETWEEN:

1 . SHRI. RAMESH S/O MARUTI KODLI
AGE 19 YEARS, OCC STUDENT,
R/O RAJAPUR, TQ MUDALAGI
DISTRICT BELAGAVI-591224

2 . SHRI SIDDAPPA S/O RAMAPPA JOKANNATTI
AGE 20 YEARS, OCC STUDENT,
R/O RAJAPUR, TQ MUDALAGI
DISTRICT BELAGAVI-591224

3 . SHRI RAMAPPA ALIAS RAMU S/O VITHAL TASALI
AGE 23 YEARS, , OCC AGRICULTURIST
R/O RAJAPUR, TQ MUDALAGI
DISTRICT BELAGAVI-591224

4 . SHRI VITHAL S/O SATYEPPA KODLI
AGE 23 YEARS, OCC COOLIE,
R/O RAJAPUR, TQ MUDALAGI
DIST BELAGAVI-591224
                                                   .. APPELLANTS
(BY Smt. SUMITA B. PATIL AND SRI S.M. MUCHANDI, ADVOCATES)

AND:

1 . THE STATE OF KARNATAKA
THE POLICE INSPECTOR
GHATAPARABHA POLICE STATION,
                                 2




DISTRICT BELAGAVI-591306
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
HIGH COURT OF KARNATAKA
AT DHARWAD BENCH-580011

2 . SMT. LATA RAMAPPA HARIJAN
AGE 40 YEARS, OCC COOLIE,
R/O RAJAPUR, TQ MUDALAGI
DIST BELAGAVI-591224
                                                .. RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP.FOR R1.
R2 SERVED AND UNREPRESENTED)


     THIS CRIMINAL APPEAL IS FILED U/S 14 A(2) OF SC/ST PA ACT,
SEEKING TO ALLOW THE APPEAL FILED BY THESE APPELLANTS BY
SETTING ASIDE THE ORDER PASSED IN CRI.MISC.NO.1242/2021 DATED
08.12.2021 PASSED BY III ADDITIONAL DISTRICT AND SESSIONS
COURT,   BELAGAVI,   AND   FURTHER   BE    PLEASED   TO   ALLOW   THE
CRI.MISC.NO.124/2021 AND THE APPELLANTS/ACCUSED NO.1 TO 4 MAY
BE   ENLARGED   ON    REGULAR   BAIL      IN   SPL.CASE   NO.229/2021
(GHATAPRABHA P.S. CRIME NO.167/2021) U/S 366(A), 376(3), 376(D),
506 R/W 34 OF IPC AND SECTION 4 AND 6 OF POCSO ACT AND SECTION
3(2) (v-a), 3(1) (W) (i), 3(2) (v) OF SC/ST PA ACT, PENDING ON THE
FILE OF III ADDITIONAL DISTRICT AND SESSIONS COURT, BELAGAVI.


     THIS APPEAL COMING ON FOR ORDERS THROUGH PHYSICAL
HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
                                      3




                               JUDGMENT

This appeal is filed by accused Nos.1 to 4 under Section

14A(2) of the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'SC &

ST Act', for short) for setting aside the order of the learned III

Additional District and Sessions Judge, Belagavi in

Crl.Misc.No.1242/2021 for the offence registered by the

Ghataprabha Police Station in Crime No.167/2021 for the offences

punishable under Sections 366A, 376D and 506 read with Section

149 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'

for brevity) and Sections 6 of the Protection of Children from

Sexual Offences, 2012 and also Section 3(2)(va) of SC & ST Act.

2. Heard the arguments of the learned counsel for the

appellants and the learned High Court Government Pleader for the

respondent No.1/State.

Respondent No.2 is served and unrepresented.

3. The case of the prosecution is that, respondent No.2-

Lata Ramappa Harijan, mother of the victim filed a complaint to the

police on 26.08.2021 alleging that she is having a daughter aged

about 15 years 4 months and on 12.07.2021 her daughter went to

the house and she came back later but she was in a sad mood. She

did not disclose anything but continuously she was in the same

mood and finally they pressurized her and on enquiry she told to

her parents that on 12.07.2021 when she was returning home, near

the land of one Ajjappa Kodli, at that time, these

appellants/accused Nos.1 to 4 and another juvenile offender were

dodging her and abducted her to sugarcane field and all 5 of them

committed sexual assault on the victim and left her. Thereafter,

the complainant took the assistance of the Child Welfare

Department 1098 and thereafter a complaint came to be lodged

against the accused persons. Accused Nos.1, 2 and 4 were

arrested on 27.08.2021, accused No.3 was arrested on 30.08.2021.

Accused No.5 is a juvenile offender aged below 18 years.

Therefore, a separate charge sheet was filed against the juvenile

offender. Investigation is completed and charge sheet is filed. The

bail petition of the appellants came to be rejected by the learned

Session Judge. Hence, they are before this Court.

4. Learned counsel for the appellants contended that the

appellants are innocent of the alleged offences. They have been

falsely implicated by the complainant. There is a delay of more

than 45 days in lodging the complaint as the alleged incident took

place on 12.07.2021 but the complaint is filed on 26.08.2021. even

on perusal of the statement of the victim made before the

Investigating Officer as well as Magistrate there is contradictions to

each other. She has not revealed the names of the accused

persons. Counsel further contended that before the Juvenile Justice

Board, the victim girl appeared along with her parents and she has

turned hostile and not supported the case of the prosecution.

Therefore, the juvenile offender was acquitted by the Juvenile

Justice Board. Hence, prayed for granting bail.

5. Per contra, learned High Court Government Pleader

seriously objected the bail petition and contended that for gang

rape on victim girl aged below 16 years, the punishment prescribed

is 20 years and no doubt that the victim has turned hostile and not

supported the case but the statement of the victim before the

Investigating Officer as well as before the Magistrate clearly reveals

that 5 persons committed forcible gang rape on her. Hymen is

ruptured. Though there is delay in lodging the complaint but the

accused cannot be granted bail and they may tamper the witnesses

and committing similar offence is not ruled out. Hence, prayed for

dismissal of the petition.

6. Learned counsel for the appellants in reply contended

that there are contradictions in the statement of the victim even in

the medical records she has stated that 4 days accused persons

committed rape and in the statement she has stated that 5 persons

committed rape but she has not disclosed names of the accused in

her statement. Therefore, the matter requires a detailed

consideration in the trial. Hence, prayed for granting bail.

7. The point that arises for consideration are:

i) Whether the appellants have made out a case for setting aside the impugned order passed by the Sessions Judge and they are entitled for bail?

ii) What order?

8. Admittedly, the victim is said to have sexually assaulted

by five persons i.e., appellants No.1 to 4 and juvenile offender (the

child conflicting with law) accused No.5 who is said to be acquitted

by the Juvenile Justice Board. The learned counsel filed a memo

stating that accused No.5 was tried and acquitted mainly on the

ground that the victim, who is examined as PW-2, her father

examined as PW-4, victim's brother was examined as PW-3 and the

complainant-her mother, who is examined as PW-1, all of them

turned hostile. However, he has not produced the certified copy of

the judgment or evidence before this Court. The complainant has

stated in the complaint that her daughter disclosed after sometime

that accused Nos.1 to 5 committed gang rape by forcibly taking her

to sugarcane land. Subsequently, when the victim was taken to the

medical examination, she has stated that 4-5 days the accused

persons sexually assaulted her and 5 persons committed sexual

assault on her. The statement of the victim was recorded on

17.08.2021. She herself has given the statement in her

handwriting and she was unable to mention the names of the

accused but the statement was recorded on 17.08.2021 prior to

lodging actual complaint by the mother. She has categorically

stated that 5 persons dragged her by lifting her to the sugarcane

field and committed gang rape on her. Of course under Section 164

Cr.P.C statement she has reiterated the same that 5 persons

committed rape but she could not mention the names of the

accused persons but she also stated some persons were talking in

the field and the same was heard by her brother and thereafter

came to know the names of the accused and then they took the

help of 1098-Child helpline and thereafter complaint came to be

filed. The hymen is ruptured. The victim categorically stated in her

statement as well as before the Investigating Officer that 5 persons

committed rape on her which amounts to gang rape punishable

under Section 376D of IPC other than POCSO Act. Of course the

complainant also belongs to SC/ST caste. But the prosecution is

required to prove whether they knowing fully well they are the

members of SC/ST committed rape or not and has to be finalized

on the merits of the case. Though the learned counsel for

appellants submits that the family members including the victim

have turned hostile because the accused might have threatened the

witnesses. The depositions are not available before the Court.

Therefore, at this stage it cannot be acceptable that the entire

family have turned hostile. The Juvenile Justice Board acquitted the

juvenile offender but that does not mean that there is no prima

facie material that the accused have not committed gang rape on

the child below 15 years which is a heinous offence. At this stage,

the Court cannot presume or call for records for the purpose of

helping the accused to come out on bail as it is a heinous offence.

Hence, accused are not entitled for bail.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

kmv & naa