Shri Santosh Mahveer Mangasuli vs The State Of Karnataka
2022 Latest Caselaw 13129 Kant

     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 18TH DAY OF NOVEMBER, 2022

                         BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

            CRIMINAL APPEAL NO. 100502 OF 2022

BETWEEN:

SHRI. SANTOSH MAHAVEER MANGASULI
AGE. 33 YEARS, OCC. PHOTO STUDIO,
R/O. HARUGERI, TQ. RAIBAG,
DIST. BELAGAVI 591317.

                                             ...APPELLANT
(BY SRI. S. M. MUCHHANDI, ADVOCATE)

AND:

1.    THE STATE OF KARNATAKA
      THE POLICE INSPECTOR,
      HARUGERI POLICE STATION, HARUGERI,
      DIST. BELAGAVI 591317,
      REPRESENTED BY ITS,
      STATE PUBLIC PROSECUTOR,
      HIGH COURT BUILDING,
      HIGH COURT OF KARNATAKA,
      AT DHARWAD BENCH 580011.


2.    KUMARI. VARSHA
      D/O. SANJU @ SANJEEV KENGARE,
      AGE. 21 YEARS, OCC. STUDENT,
      R/O. SAPTASAGAR, TQ. ATHANI,
      DIST. BELAGAVI -591304.

                                           ...RESPONDENTS
(BY SRI. PRASHANTH V. MOGALI, HCGP FOR R1;
R2 - SERVED)
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                                    CRL.A No. 100502 of 2022




     THIS CRIMINAL APPEAL IS FILED U/S 14 A(2) OF SC AND
ST (PA) ACT, SEEKING TO ALLOW THE APPEAL FILED BY THIS
APPELLANT/ACCUSED NO.1 BY SETTING ASIDE THE ORDER
PASSED IN CRI.MISC.NO.1253/2022 ON 21.09.2022 PASSED
BY III RD ADDITIONAL DISTRICT AND SESSIONS COURT,
BELAGAVI,      AND      FURTHER         BE     ALLOW           THE
CRI.MISC.NO.1253/2022 FILED BY THIS APPELLANT AND THE
APPELLANT/ACCUSED NO.1 MAY BE ENLARGED ON REGULAR
BAIL IN HARUGERI P.S. CRIME NO.92/2022 U/S 376(2) (n),
323, 384, 504, 506, R/W 34 OF IPC AND SECTION 3(1)(r),
3(1)(s), 3(1)(w)(1), 3(2)(va) OF SC/ST PA ACT IN SPL.CASE
NO.186/2022   PENDING    TRIAL ON      THE   FILE   OF   III   RD
ADDITIONAL DISTRICT AND SESSIONS COURT, BELAGAVI.


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


                        JUDGMENT

This appeal is filed by accused No.1

challenging the order dated 21.09.2022 passed in

Criminal Miscellaneous No.1253/2022 whereunder,

the bail petition filed by this appellant/accused

No.1 in respect of Crime No.92/2022 of Harugeri

Police Station registered for the offences

CRL.A No. 100502 of 2022

punishable under Sections 376(2)(n), 323, 384,

504, 506 read with Section 34 of the Indian Penal

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

and Sections 3(1)(r), 3(1)(s), 3(1)(w)(1) and

3(2)(va) 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 for the appellant,

learned High Court Government Pleader for

respondent No.1/State. Respondent No.2 on the

previous date appeared physically before this

Court and prayed not to grant bail to the

appellant/accused No.1 as she is having threat by

him.

3. The case of the prosecution is that, the

victim girl has filed the complaint stating that her

CRL.A No. 100502 of 2022

age is 21 years, she belongs to SC community and

she is studying in B.Sc II n d year Nursing Course

and staying at BCM hostel. It is further stated

that she went to submit online application during

April-2021 in photo studio belonging to this

appellant/accused No.1 and thereafter he started

sending messages to her and they started talking

to each other. It is further stated that on

29.10.2021 she came to photo studio of the

appellant and he gave her tender coconut to drink

and after drinking that she became unconscious.

When she got up, her dress were not proper and

she went to her house, she got stomach pain so

she suspected that she has been sexual assaulted.

After few days this appellant/accused No.1 sent

nude photo of the victim girl on her mobile phone.

The victim girl requested him to delete it, but he

did not delete and started having sexual

intercourse with her on threatening her in his

CRL.A No. 100502 of 2022

photo studio and also in Royal Lodge, Annapurna

Lodge in Gokak. It is further stated that he has

also given some gifts to her on 22.03.2022. The

appellant asked her to sleep with his friends, he

used to call her everyday on phone. She told the

same to the notice of his mother and she assured

that it will be enquired. It is further stated that

during the month of April one Triveni the wife of

appellant called her over phone and insulted her

by using her caste and when complainant enquired

with the appellant he told that the said Triveni is

his elder brother's wife. It is further stated that

on 18.04.2022 when the victim girl was going to

college, this appellant's wife Triveni assaulted her

and snatched her mobile and took her to the Police

Station. The said complaint came to be registered

in Harugeri Police Station Crime No.92/2022 for

the offences punishable under Sections 376(2)(n),

323, 504 read with Section 34 of IPC and Sections

CRL.A No. 100502 of 2022

3(1)(r), (2), (w)(i), 3(2)(va) of SC & ST Act, 1989.

The Police after investigation filed charge sheet

against this appellant/accused No.1 and two others

for offences under Section 376(2)(n), 323, 354, 504

and 506 read with Section 34 of IPC and Sections

3(1)(r) (s), (w)(i) and 3(2)(va) of the SC & ST Act.

The appellant came to be arrested on 29.05.2022

and he is in judicial custody. The appellant filed

Criminal Miscellaneous No.1253/2022 seeking bail

and the same came to be rejected by the learned III

Additional District and Sessions Judge, Belagavi, by

order dated 21.09.2022. The appellant has

challenged the said order in the instant appeal.

4. Learned counsel for the appellant would

contend that the victim girl is aged 21 years and on

going to the averments of the complaint and other

prosecution papers, it is clear that there is affair

between this appellant and the victim girl and the

CRL.A No. 100502 of 2022

alleged sexual intercourse by this appellant/accused

No.1 on the victim girl is consensual. The victim girl

even though appeared before the Police on

18.04.2022 and secured her aunt and father but has

not chosen to file any complaint. The very aspect

goes to show that there is no allegation against this

appellant/accused No.1 on that date. It is his

further submission that, CW-13-Manju, who is

running photo studio by the side of the photo studio

of accused No.1, in his statement has stated that,

the victim girl used to come to the photo studio of

the appellant/accused No.1 and used to talk with

him hours together. The photos retrieved from the

mobile phone of accused No.1 do not contain any

obscene photos. Call detail record reveal that there

are several calls between the victim girl and this

appellant/accused No.1. The Doctor who examined

the victim girl has noted that she is having

psychiatry adjustment disorder. The photos taken of

CRL.A No. 100502 of 2022

the victim girl with this appellant/accused No.1

shows that the victim is not under any threat and

she was taken to different places i.e. to Belagavi,

Bengaluru etc. The alleged sexual intercourse by this

petitioner/accused No.1 on the victim girl is

consensual. Charge sheet is filed. Therefore, the

appellant is not required for custodial interrogation.

Without considering these aspects, the learned

Sessions Judge has passed the impugned order

which calls for interference by this Court. With this

he prayed to allow the appeal and to grant bail to

the appellant.

5. Per contra, learned High Court Government

Pleader would contend that the appellant/accused

No.1 is having wife and two daughters and

suppressing the same, he had affair with this victim

girl and by threatening her, he continued his

physical contact with her. It is his further

submission that, the D octor who examined the victim

CRL.A No. 100502 of 2022

girl has noted that her hymen is not intact. The

victim girl in her statement recorded under Section

164 Cr.P.C. has stated in detail the acts of this

appellant/accused No.1. Charge sheet material

shows prima facie case against this appellant for the

offences alleged against him. If the

appellant/accused No.1 is granted bail, he will

threaten the complainant and other prosecution

witnesses. Considering all these aspects, the learned

Sessions Judge has rightly passed the impugned

order which does not call for any interference by this

Court. With this, he prayed to dismiss the appeal.

6. Having heard the learned counsel for the

appellant and the learned High Court Government

Pleader for respondent No.1, this Court has gone

through the charge sheet records and the impugned

order.

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CRL.A No. 100502 of 2022

7. The age of the victim girl is 21 years as

per the averments of her complaint and she is

belonging to SC community and she is studying in

B.Sc. II year Nursing course and staying at BCM

Hostel. The victim girl came in contact with this

appellant when she visited his photo studio during

April 2021. As per the averments of the complaint,

the victim girl on insistence of this

appellant/accused No.1, has agreed to love him. On

29.10.2021, the victim girl went to the photo studio

of this appellant/accused No.1, there, it is alleged

that, this appellant/accused No.1 had sexual

intercourse on her when she was unconscious after

drinking tender coconut and it is alleged that he

gave threat to her that, he has taken her nude

photographs. The victim girl, even at that time, has

not chosen to file any complaint against this

appellant/accused No.1. Even thereafter, the victim

girl has moved along with him to different places

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CRL.A No. 100502 of 2022

and has taken photographs with him and she has

also received gifts from this appellant/accused No.1

on 22.03.2022. The victim girl was taken to the

police station on 18.04.2022 when the wife of this

appellant had snatched her mobile phone and at that

time, she secured her aunt-Sattyavva and her father

and went away from the police station. On that day,

she did not disclose anything to the police. The

victim girl consumed poison on 18.05.2022 and it is

alleged that she consumed poison after the wife of

this appellant/accused No.1 gave threat to her. The

complaint came to be filed on 25.05.2022. The

victim girl is aged 21 years and capable of

understanding the consequences of her acts. On

perusal of the charge sheet material, at this state, it

appears that the alleged physical contact between

the appellant and the victim is consensual. As

charge sheet is filed, the appellant is not required

for custodial interrogation.

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CRL.A No. 100502 of 2022

8. The main objection of the prosecution is

that if the petitioner/accused No.1 is granted bail,

he will threaten the complainant and other

prosecution witnesses can be met with by imposing

stringent conditions.

9. In the facts and circumstances of the case

and submission of the counsel, this Court is of the

view that there are valid grounds for setting aide the

impugned order and grant of bail to the

appellant/accused No.1. Hence, I proceed to pass

the following:

ORDER

The criminal appeal is allowed. The order dated

21.09.2022 passed by the learned III Additional

district and Sessions Judge, Belagavi in

Crl.Misc.No.1253/2022 is set aside. Consequently,

the bail petition of the appellant/accused No.1 is

allowed and he is ordered to be released on bail in

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CRL.A No. 100502 of 2022

Crime No.92/2022 of Harugeri Police Station subject

to the following conditions:

i) The appellant/accused No.1 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.

ii) The appellant/accused No.1 shall not indulge in tampering the prosecution witnesses.

iii) The appellant/accused No.1 shall attend the Court on all the dates of hearing unless exempted and co-operate in speedy disposal of the case.

Sd/-

JUDGE

SMM & KMV