Karnataka High Court

Shivananda Ummanna Gouler vs The State Of Karnataka on 28 March, 2022

Bench: P.N.Desai

                              1




              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

           DATED THIS THE 28TH DAY OF MARCH, 2022

                          BEFORE

             THE HON'BLE MR. JUSTICE P.N.DESAI

             CRIMINAL PETITION NO.100227/2022
BETWEEN:

SHIVANANDA UMMANNA GOULER
AGE: 53 YEARS, OCC: AGRICULTURE
R/O. ORALAGI, MUNDAGOD.
                                                 ...APPELLANT
(BY SHRI R.H.ANGADI., ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       (MUNDGOD POLICE STATION U.K.)
       R/BY STATE PUBLIC PROSECUTOR
       HIGH COURT OF KARNATAKA
       DHARWAD BENCH, DHARWAD-580011.

2.     SMT. YASHODHA RAJKUMAR CHENNAPUR
       AGE: 32 YEARS, OCC: LABOURER
       R/O. ORALAGI, MUNDGOD, UTTAR KANNADA.

                                               ...RESPONDENTS.
(BY SMT. GIRIJA HIREMATH, HCGP, FOR R.1;
MISS. DEEPA J., FOR SRI S.S.YALIGAR, FOR R2)

      THIS CRIMINAL PETITION IS FILED U/SEC.439 OF CR.P.C.,
SEEKING TO ALLOW THE PETITION AND ENLARGE THE
PETITIONER ON BAIL WHO IS ARRAYED AS AN ACCUSED IN
SPECIAL CASE NO.160/202, PENDING ON THE FILE OF
ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-1 U.K.
KARWAR (SPECIAL COURT FOR TRIAL OF CASES FILED U/S POCSO
ACT) IN CONNECTION WITH MUNDGOD P.S. CRIME NO.117/2021,
FOR THE OFFENCES PUNISHABLE U/SEC.354(B) AND 376AB OF
IPC AND SECTION 6, 10 AND 12 OF POCSO ACT.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.03.2022., COMING ON FOR PRONOUNCEMENT
OF ORDER THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                                  2




                             ORDER

This petition is filed under section 439 of the Code of

Criminal Procedure, 1973, seeking to enlarge the petitioner,

who is arraigned as accused, on bail in Spl.Case

No.160/2021, pending on the file of Addl.District and

Sessions Judge-FTSC-I, U.K Karwar in Crime No.117/2021,

registered in Mundgod Police Station, Dist: Uttara Kannada,

for the offences punishable under Section 354(B) and

376(A)(B) of Indian Penal Code (for short 'IPC') and Sections

6, 10 and 12 of Protection of Children from Sexual Offences

Act, 2012 (for short 'POCSO' Act).

2. The informant-Smt Yashodha W/o Rajkumar

Chennapur filed a complaint before Mundgod police station

stating that herself, her sons by name Shivaraj, Punith and

her daughter by name Arpita were residing at Oralagi village,

Tq: Mundgod. It is alleged that on 20.09.2021 in the evening

she returned home from coolie work, at that time one

Lakhsmibai W/o Mohan Samboji called her and informed her

that about 4 days back i.e., on 16.09.2021 at 2:00p.m one

Shivananda Gouler i.e., petitioner taken her daughter-Arpita

to the land. The said Lakshmibai further informed that she

saw and asked the victim girl where she is proceeding. The

victim girl told that the petitioner-accused took her to his

land and removed her dress and touched her private part.

Immediately thereafter, the complainant-informant also

enquired her daughter. The said victim girl told same things

and complained she is having stomach pain and also pain in

her private part. The complainant observed private part of

the victim girl and found there was reddish mark and

swelling. The victim girl also informed that the petitioner-

accused took her and gave biscuits and he touched her

private parts and he used to give Rs.5/- or 10/-. The accused

told the victim girl not to inform anybody. In this regard,

complainant filed a complaint on 21.09.2021. The same was

registered at 9:15 p.m for the offences stated above. The

petitioner-accused was arrested on 22.09.2021, since then he

is in judicial custody. Hence, the petitioner filed this petition.

3. Learned HCGP filed objection contending that the

victim girl is 9 years old. The statement under Section 164 of

Cr.P.C given by victim girl before Civil Judge and JMFC.,

Mundgod clearly indicates the act of sexual assault

committed by the petitioner-accused. There are statements

of CW.5 and CW.6. The medical and RFSL reports supports

the case of prosecution. If the petitioner-accused is released

on bail, he may repeat the act and also may threaten the

complainant and witnesses. So, with these contentions the

prosecution prays to reject the reject the bail petition.

4. Heard Sri R.H.Angadi, learned counsel for the

petitioner and Smt Girija Hiremath, learned High Court

Government Pleader for the respondent No.1-State and

Miss.Deepa J., appearing for Sri S.S.Yaligar, learned counsel

for respondent No.2.

5. Learned counsel for the petitioner argued that the

petitioner is innocent and he has not committed any offence.

The investigation is already completed and charge sheet is

also filed. The medical evidence shows that no injury on the

body of the victim. There was no injury on genital. He further

argued that hymen is not ruptured and sexual intercourse

has not occurred. Therefore, there is no material to show that

the petitioner is involved in this case. The petitioner is aged

53 years and there is delay in lodging the complaint. The

petitioner has been falsely implicated by the police at the

instance of some ill-wishers and he is ready to abide

conditions if he is released on bail.

6. Learned counsel for the petitioner relied upon the

decision of Hon'ble Apex Court in the case of Datta Rama

Singh Vs State of Uttar Pradesh reported in 2018 (3)

SCC 22. Learned counsel also relied upon the decision of

Hon'ble Apex Court in the case of Sanjay Chandra Vs

Central Bureau of Investigation reported in (2012) 1

SCC 49, wherein the Hon'ble Supreme Court reiterated the

object of bail and how to exercise judicial discretion while

granting or refusing bail. With these main arguments, he

prays to enlarge the petitioner on bail.

7. Learned HCGP has reiterated the contention

taken in the objection statement.

8. Sections 6, 10 and 12 of the Protection of

Children from Sexual Offences Act, 2012 reads as under;

6. Punishment for aggravated penetrative sexual assault.--

(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall

mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.

            10. Punishment           for aggravated
       sexual       assault.--Whoever,       commits

aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.

12. Punishment for sexual harassment.-- Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

9. It is true evident from the records that the

complaint was lodged after first informant was informed by

one Laxmibayee. The statement of witness by name

Laxmibayee shows that she enquired the victim girl on

16.09.2021 and the victim girl informed her that the

petitioner took victim girl to his land and removed victim

girl's inner-garments and touched her private parts. Then she

informed the same to the complainant-Smt.Yashodha

Chennapur. The medical record produced in this case i.e.,

Medico-legal examination Report of Sexual violence also

shows that the victim girl gave a history that the petitioner

tried to touch her genitals and tried to penetrate by piercing

his penis. The doctor opined that Hymen is not ruptured and

there are no injuries on genitals. The doctor opined that

sexual intercourse has not occurred. This history coupled with

the victim statement under Section 164 of Cr.P.C given

against the petitioner on 16.10.2021 shows that the victim

girl clearly stated that when she was playing, one elder

person told her that he will give food and he removed her

underwear and put his penis in her genitals. She has

sustained pain in her legs. Victim girl further stated that

people told her don't go with the petitioner-accused, as he is

not a good person. The petitioner-accused used to take her

by the side of tractor and he touched her body. So this

statement of witness coupled with the statements of other

witnesses and medical evidence. At this stage, prima-facie

discloses that penetrating sexual assault on victim is

committed by the petitioner. The victim girl is just 9 years

old. Absolutely, there are no reasons forthcoming as to why

the petitioner-accused is falsely implicated or there is no

enmity between first informant family or with the person,

who has seen incident and informed mother of victim. The

charge sheet is filed stating that petitioner has committed the

above said offences. The doctor never stated that sexual

assault has not occurred, though sexual intercourse had not

been occurred. The principles stated in the above referred

decisions are very well settled. But looking into the gravity

and nature of the offence, age of the victim girl and the

medical evidence at this stage, the apprehension of the

prosecution that if the petitioner is granted bail he may

tamper the evidence appears to be well founded, as he is

residing in the same area.

10. The ingredients of Sections 6, 10 and 12 of

POCSO Act, provides severe punishment. The purpose of

enacting the said act is for protection of children from sexual

offences. Now a days there has been increase of cases of

sexual assault offences against the children. The interest of

child-victim and witnesses needs to be protected. The

childhood of children be protected against the exploitation.

Section 6 of the POCSO Act, provides for aggravated sexual

assault, Section 10 of POCSO Act, provides for punishment

and Section 12 of POCSO Act provides for punishment for

sexual assault and harassment. These types of offences

triable by Special Courts'.

11. It is settled principle of law that bail is a rule and

rejection is an exception. While granting or rejecting the bail

application, the Court will have to take into consideration;

       (1) the nature         and       seriousness   of    the
           offence;

       (2) character of the accused;

       (3) circumstances       which       are   peculiar    to
           accused;

(4) reasonable probabilities of presence of the accused not being secured at trial;

(5) reasonable apprehension of witnesses being tampered with; and

(6) larger interest of public or the state and similar other considerations, which arise when a court is asked to admit the accused to bail in a non-bailable offence.

12. Therefore, looking into the nature and gravity of

the offences, as the offence is heinous one, the material

placed before the Court and the impact of the offence against

society at large, the apprehension of the prosecution that if

the petitioner is released on bail, he may threaten the

prosecution witnesses and victim is well founded. Hence, at

this stage, the petitioner is not entitled to be enlarged on

bail. Accordingly, I proceed to pass the following:

ORDER

1. The criminal petition filed under section 439 of

Cr.P.C.P.C. is hereby rejected.

2. However, the trial Court shall expedite the trial of