Laxman S/O Parashuram Bhajantri vs The State Of Karnataka
2022 Latest Caselaw 9348 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

           DATED THIS THE 22nd DAY OF JUNE 2022

                           BEFORE

            THE HON'BLE MR.JUSTICE K. NATARAJAN

            CRIMINAL PETITION NO.101528/2022


BETWEEN:

LAXMAN S/O PARASHURAM BHAJANTRI
AGE. 19 YEARS,
OCC. PASTE CONTROL WORK,
R/O. SHIVA COLONY,
GOPANKOPPA, HUBBALLI- 580023
                                                 .. PETITIONER
(BY SRI. B. ANWAR BASHA, ADVOCATE)

AND:

1 . THE STATE OF KARNATAKA
(THROUGH ASHOK NAGAR P S)
REPRESENTED BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
AT DHARWAD 580001

2 . RAVIMURTHY DODDAMANI
S/O RANGAYYA
AGE. 53 YEARS, OCC. SALESMEN
R/O. HOUSE NO.113,
SHIVA COLONY GOPANKOPPA
HUBBALLI 580023
                                            .. RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR RESPONDENT NO.1.
RESPONDENT NO.2 SERVED AND UNREPRESENTED.)
                                   2




      THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C., SEEKING
TO ALLOW THIS PETITION AND ENLARGE THE PETITIONER ON BAIL IN
SPL.SC.NO.36/2021 IN CONNECTION WITH (CRIME NO.70/2021
REGISTERED IN ASHOK NAGAR P.S. HUBBALLI) PUNISHABLE U/S 376 OF
IPC AND 6 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT
2012, PENDING TRIAL OF THE CASE, BEFORE THE II ND ADDITIONAL
DISTRICT AND SPECIAL JUDGE, DHARWAD.

     THIS PETITION COMING ON FOR ORDERS THROUGH PHYSICAL
HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:

                             ORDER

This petition is filed by the petitioner/accused under Section

439 of the Code of Criminal Procedure, 1973 (hereinafter referred

to as 'Cr.P.C.' for brevity) for granting bail in Crime No.70/2021

registered by the Ashoknagar Police Station for the offence

punishable under Section 376 of the Indian Penal Code, 1860

(hereinafter referred to as 'IPC' for brevity) and Section 6 of the

Protection of Children from Sexual Offences Act, 2012(hereinafter

referred to as 'POCSO Act', for brevity).

2. Heard the arguments of the learned counsel for the

petitioner and the learned High Court Government Pleader for

respondent No.1/State.

Respondent No.2 appeared and he has instructed the learned

High Court Government Pleader to argue the matter.

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

Ravimurthy Doddamani filed complaint before the police on

03.08.2021 alleging that he is having two daughters. Second

daughter is the victim studying in 8th standard. On 02.08.2021 his

wife informed that, their daughter is not getting menses which was

stopped. Suspecting something, they took her to the hospital where

scanning was done and came to know that she was pregnant by 5

weeks. On enquiry she has informed that herself, her sister went to

Malani falls. Her sister also came along with one Saleem where

accused came there and he took her to a lonely place near the falls

and had sex with her. Again after ten days, both of them went to

the same falls once again the accused committed sexual assault on

her and due to fear, she did not disclose to anybody. After

registering the case, the police arrested the petitioner on

05.08.2021. He was remanded to judicial custody. His bail

application came to be rejected by the learned Sessions Judge.

Hence, he is before this Court.

4. Learned counsel for the petitioner contended that, the

petitioner is innocent of the alleged offence. He is youngster aged

about 19 years. He is in jail for almost 9 to 10 months. If the

petitioner is detained in jail, he may come in contact with hardcore

criminals. Investigation is completed and charge sheet is filed.

Counsel further contended that in spite of knowing the accused

committed rape on the first occasion, the victim again went along

with the accused and for the second time, again they underwent

the said act. Therefore, it can be considered only at trial. The

petitioner is ready to abide any conditions. Hence, prayed for

granting bail.

5. Per contra, learned High Court Government Pleader for

respondent No.1/Sate seriously objected the petition and contended

that the victim is aged 14 years. She has stated in her statement

under Section 164 of Cr.P.C. that the accused committed rape on

her. Her willing or consent is immaterial, as she is stated to be

aged 14 years. She became pregnant. DNA test report shows that

the accused is the biological father of the fetus. Therefore, prayed

for dismissal of the petition.

6. Having heard the learned counsel for the parties,

perused the records.

7. On perusal, it is not in dispute that the victim became

pregnant who is aged about 14 years 8 months. She has stated

that the accused came in contact with her and became friend.

Herself and her sister both of them went to the falls where accused

also came there and during the said time, the accused committed

sexual assault on her and once again they went to the same place

after 10 days. Again, the accused is stated to have had intercourse

with her. Of course, for the second time, when she went along with

the accused, she might have given consent or willingness for the

sexual act by the accused but it is well settled by various judgment

of the Hon'ble Supreme Court and this Court that consent of a child

below 18 years is immaterial. Therefore, the contention of the

learned counsel that the victim willingly for the second time, went

along with the accused and undergone sexual act, cannot be

considered, as the consent or willingness is immaterial as she is a

child aged about 14 years and she is not aware of the

consequences of the act. Though the accused may be aged 19

years but having sex by taking her to a lonely place under the guise

of trip or tour and committing sexual assault, is nothing but a rape

on the child and also an offence under the POCSO Act. That apart,

the fetus was removed by termination of the pregnancy. Same was

sent for DNA test. The report is received where it is proved that

the petitioner is the biological father and the victim is the biological

mother of the fetus which further confirms sexual assault.

8. Therefore, considering the fact that the age of the

victim is 14 years child, therefore the contention of the learned

counsel that the petitioner is in custody for almost 10 months is not

a ground for granting bail. Therefore, I am of the view that the

petitioner is not entitled for bail.

Accordingly, the criminal petition is dismissed.

Sd/-

JUDGE kmv