Karnataka High Court

Shri. Suraj S/O. Ramesh Kadam vs The State Of Karnataka on 15 November, 2022

Bench: Shivashankar Amarannavar

     N THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 15TH DAY OF NOVEMBER, 2022

                         BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

           CRIMINAL APPEAL NO. 100492 OF 2022

BETWEEN:

SHRI. SURAJ S/O. RAMESH KADAM
AGE. 20 YEARS, OCC. BUSINESS,
R/O. CHRISTIAN GALLI, BEEDI,
TQ. KHANAPUR, DIST. BELAGAVI-590001.

                                             ...PETITIONER

(BY SRI. SADIQ N. GOODWALA, ADVOCATE)


AND:

1.    THE STATE OF KARNATAKA
      THROUGH SUB-INSPECTOR OF POLICE,
      NANDGAD POLICE STATION,
      NANDGAD, DIST. BELAGAVI,
      REPRESENTED BY,
      THE STATE PUBLIC PROSECUTOR,
      HIGH COURT OF KARNATAKA,
      DHARWAD BENCH.


2.    AARATI W/O. GANESH KAMBLE
      AGE. 50 YEARS, OCC. HOUSEWIFE,
      R/O. JOIDA,
      DIST. UTTARA KANNADA-577419.

                                         ...RESPONDENTS
(BY SRI. PRASHANTH V. MOGALI, HCGP FOR R1;
R2 - SERVED)
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                                           CRL.A No. 100492 of 2022




     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 14 A
(2) OF SC/ST P.A (AMENDMENT) ACT 2015, SEEKING TO
RELEASE THE APPELLANT ON BAIL IN CRIME NO. 84/2022
DATED 12.08.2022 ON THE FILE OF THE NANDGAD P.S. FOR
OFFENCES     PUNISHABLE        UNDER        SECTION      376   OF    IPC,
SECTION 4 OF POSCO ACT 2012 AND SECTION 3(2) (V) OF
SC/ST P.A (AMENDMENT) ACT 2015, AND SET-ASIDE THE
JUDGMENT PASSED BY THE FILE OF THE ADDL DISTRICT AND
SESSIONS     JUDGE,    FTSC-I       BELAGAVI      IN    CRL.MISC     NO.
1267/2022 DATED 29.09.2022.


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

                          JUDGMENT

This appeal is filed by the sole accused

challenging the order dated 29.09.2022 passed in

Criminal Miscellaneous No.1267/2022 whereunder,

the bail petition filed by this appellant/accused in

respect of Crime No.84/2022 of Nandagad Police

Station registered for the offences punishable

under Section 376 of the Indian Penal Code

(hereinafter referred to as the 'IPC', for brevity),

CRL.A No. 100492 of 2022

Section 4 of the Protection of Children from Sexual

Offences Act, 2012 (hereinafter referred to as the

'POCSO' Act, for brevity) and Section 3(2)(v) of

The Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (hereinafter

referred to as 'SC & ST (POA) Act', for brevity),

came to be rejected.

2. Heard learned counsel appearing for the

appellant and learned High Court Government

Pleader for respondent No.1/State. Inspite of

service of notice respondent No.2 remained absent

and unrepresented.

3. The case of the prosecution is that, the

victim girl has filed the complaint stating that her

father died in the year 2019, her mother Savita

eloped with a man and went away with him in

April. It is further stated that she has studied

upto 8th standard and she met the

CRL.A No. 100492 of 2022

appellant/accused who belongs to Maratha Caste

and they loved each other. It is further stated

that when the complainant used to go to school the

appellant/accused used to talk with her at bus

stand. After completion of 9th standard

examination she went to her grand-mother's house

in Parishwad Village. Subsequently, the

complainant visited Durgamma Jatra on 8 t h March

2022 and on knowing the said fact, the

appellant/accused came to the said Jatra place and

they both met at the Jatra and went talking

towards the Kolppajja Temple which is situated at

outskirts of the village. At that time the

appellant/accused told her that he loves her and

convinced her to have physical contact with him.

There they had physical contact in the moonlight

around 8.30 p.m. and subsequently they came

back to their houses. Subsequently the aunt of

the complainant came to know about the

CRL.A No. 100492 of 2022

complainant's love affair and therefore they

performed her marriage with another person by

name Udachappa Biladar during May-2022 and

after 15 days of the marriage on coming to know

the information the persons from the Child Welfare

protected her and produced her before the District

Child Welfare Committee. Before them, the

complainant revealed that she had physical contact

with this appellant/accused. Subsequently, the

victim went to Nandagad Police Station and lodged

the complaint against this appellant/accused. The

said complaint came to be registered in Crime

No.84/2022 of Nandagad Police Station for the

offences punishable under Section 376 of IPC,

Section 4 of POCSO Act and Section 3(2)(v) of SC

and ST (POA) Act. The appellant/accused came to

be arrested on 12.08.2022 and he is in judicial

custody. The appellant/accused has filed Criminal

Miscellaneous No.1267/2022 seeking bail and the

CRL.A No. 100492 of 2022

same came to be rejected by learned Additional

District and Sessions Judge FTSC-I, Belagavi by

order dated 29.09.2022. The appellant/accused

has challenged the said order in the present

appeal.

4. Learned counsel for the appellant would

contend that the alleged incident was occurred on

08.03.2022 and the complaint came to be filed on

12.08.2022 and there is a delay in filing the

complaint. It is his further submission that no

case registered against the person who married

with this victim girl who is aged 15 years. It is his

further submission that the Child Welfare

Department, for the statistical purpose has filed a

false complaint against this appellant/accused.

The doctor who examined the victim girl has noted

no injuries over her body and her hymen is absent

and there is old tear. The statement of victim girl

CRL.A No. 100492 of 2022

has been recorded under Section 164 of Cr.P.C. As

the charge sheet is filed, the appellant/accused is

not required for custodial interrogation. Without

considering all these aspects, learned

Sessions/Special Judge has passed the impugned

order which requires interference by this Court.

With this, he prayed to allow the appeal.

5. Per contra, learned High Court

Government Pleader would contend that the date

of birth of the victim girl as per her school records

is 12.10.2007 and she is aged 15 years as on the

date of alleged incident. The victim girl in her

complaint as well as in her statement recorded

under Section 164 of Cr.P.C. has specifically stated

the overt acts of this appellant/accused having

sexual intercourse on her. The victim girl has

been examined by the doctor, who opined that her

dental age is 15-16 years and skeletal age is 16-

CRL.A No. 100492 of 2022

18 years. The charge sheet is filed and there are

sufficient material shows the prima facie case

against this appellant/accused for the offences

alleged against him. Considering all these

aspects, learned Sessions/Special Judge has rightly

passed the impugned order which does not

requires any interference by this Court. With this,

he prayed to dismiss the appeal.

6. Having regard to the submissions made

by learned counsel for the appellant and learned

High Court Government Pleader for respondent

No.1-State, this Court has gone through the

complaint, FIR, charge sheet records and the

impugned order.

7. The date of birth of the victim girl as per

her school records is 12.10.2007. The averments

of the complaint and also the averments of the

CRL.A No. 100492 of 2022

statement of the victim girl recorded under Section

164 of Cr.P.C. revealed that she had love affair

with this appellant/accused. The alleged incident

occurred on 08.03.2022, but the complaint came to

be filed on 12.08.2022, in between there is a

marriage of this victim girl with one Udachappa

and no case is registered against him for marrying

a minor girl. The doctor who examined the victim

girl has noted that her hymen is absent and there

is old tear. In between the alleged date of

incident and filing the complaint, the marriage of

this victim girl took place with said Udachappa.

The victim girl is of the age of understanding the

consequences of her acts. The appellant/accused

is in judicial custody since 12.08.2022. As the

charge sheet is filed, the appellant/accused is not

required for custodial interrogation. There are no

criminal antecedents of this appellant/accused.

Without considering all these aspects, learned

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CRL.A No. 100492 of 2022

Sessions/Special Judge has passed the impugned

order which requires interference by this Court.

The apprehension of the prosecution is that if

the appellant/accused granted bail, he will

threaten the complainant and other prosecution

witnesses can be met with by imposing stringent

conditions.

8. Therefore in the facts and circumstances

of the case, this Court is of the view that the there

are valid grounds for setting aside the impugned

order and grant of bail to the appellant/accused.

Hence, I proceed to pass the following:

ORDER

The appeal is allowed. The impugned order

dated 29.09.2022 passed in Criminal Miscellaneous

No.1267/2022 by learned Additional District and

Sessions Judge FTSC-I, Belagavi, is set aside.

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CRL.A No. 100492 of 2022

Consequently, the appellant/accused is ordered to

be released on bail in Crime No.84/2022 of

Nandagad Police Station, subject to the following

conditions:

i. The appellant shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh Only) with one surety for the likesum to the satisfaction of the Jurisdictional Court.