Karnataka High Court
Madhu vs State Of Karnataka By on 13 October, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.1406 OF 2022
BETWEEN:
MADHU
S/O KRISHNAPPA
AGED ABOUT 35 YEARS
R/AT DODDAGOLLAHALLI VILLAGE
KUNDANA HOBLI,
DEVANAHALLI TALUK
BANGALORE RURAL DIST - 562 110
(NOW AT J.C)
... APPELLANT
(BY SRI. NAGABHUSHANA REDDY K, ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
VISHWANATHAPURA POLICE STATION
BANGALORE DISTRICT
REPRESENTED BY S.P.P
HIGH COURT BUILDING
BANGALORE - 01
2. CHELUVAPPA
AGED ABOUT 40 YEARS
S/O CHIKKA ANJINAPPA
R/AT DODDAGOLLAHALLI VILLAGE
KUNDANA HOBLI,
DEVANAHALLI TALUK
BANGALORE RURAL DIST - 562 110
...RESPONDENTS
THIS APPEAL IS FILED UNDER SECTION 14(A)(2) OF
THE CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE
THE ORDER DATED 01.08.2022 PASSED BY THE LEARNED
2
ADDL. DISTRICT AND SESSIONS JUDGE, FTSC-II,
BENGALURU RURAL DISTRICT AT BANGALORE IN
CRL.MISC.1297/2022 AND RELEASE THE ABOVE APPELLANT
ON BAIL IN CRIME NO.91/2022 OF VISHWANATHAPURA P.S.
FOR ALLEGED OFFENCES PUNISHABLE UNDER SECTIONS
323, 354(B), 376(3), 504, 506 OF IPC AND SECTION 4(2),
5(L), 6 OF POCSO ACT AND SECTION 3(1)(r)(s), 3(2)(V) of
SC/ST ACT, WHICH IS PENDING BEFORE ADDL. DISTRICT
AND SESSIONS JUDGE, FTSC-II, BENGALURU RURAL
DISTRICT AT BANGALORE, TO MEET THE ENDS OF JUSTICE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal filed under Section 14A(2) of SC & ST
(Prevention of Atrocities) Act, 1989, appellant who is
accused is seeking bail in Cr.No.91/2022 for the offences
punishable under Sections 323, 354B, 376(3), 504, 506
I.P.C, Section 4(2), 5(L), 6 of POCSO Act and Section
3(1)(r)(s), 3(2)(v) of SC & ST Act, by setting aside the
order dated 01.08.2022 passed in Crl.Misc.1297/2022 by
the Addl.District and Sessions Judge, FTSC-II, Bengaluru
Rural District.
2. For the sake of convenience the parties are
referred to by their rank before the trial Court.
3. Respondent No.1 - State has appeared
through High Court Government Pleader.
4. Respondent No.2/complainant is duly served.
5. Accused is seeking bail contending that based
on complaint dated 30.06.2022, filed by the
complainant/respondent No.2, a case in Cr.No.91/2022
came to be registered against him for the offences
punishable under Sections 323, 354B, 376(3), 504, 506
I.P.C, Section 4(2), 5(L), 6 of POCSO Act and Section
3(1)(r)(s), 3(2)(v) of SC & ST Act.
5.1 He is innocent of the offences alleged. There is
inordinate delay of 4 days in lodging the complaint. The
contents of the complaint indicate that it is drafted at the
instance of persons who are inimical towards accused
and his family members. The complaint as well as
statement of the prosecutrix indicate that she is
consenting party and there was no force by accused. The
provisions of the offences punishable under Sections 323,
354B, 376(3), 504, 506 I.P.C, Section 4(2), 5(L), 6 of
POCSO Act and Section 3(1)(r)(s), 3(2)(v) of SC & ST
Act are not attracted. The alleged offences are not
punishable with death or imprisonment for life. Learned
counsel for accused submitted that the case of the
prosecution consists of full of contradictions. There are
no other criminal cases pending against the accused and
prays to allow the appeal and release him of bail.
6. In support of his arguments, learned counsel
for appellant has relied upon the following decisions:
(i) 2016 Supreme (Kar) 142
(ii) 2015 Supreme (P 7 H) 1104
(iii) 2014 Supreme (Ker) 8
(iv) Crl.P.No.4306/2018
(v) AIR 1984 (SC) 372
7. On the other hand learned High Court
Government Pleader resisted the appeal and submitted
that when the complaint was filed the prosecutrix was
aged 16 years. The complaint averments reveal that
since about one year prior to the date of complaint i.e.,
when the prosecutrix was aged 15 years, accused started
sexually assaulting her and on the date of incident i.e.,
on 26.06.2022 at 11.30 p.m. on hearing the cries of
prosecutrix, when her parents i.e., complainant and his
wife rushed to the spot consisting of a trench (ºÀ¼Àî)
surround by bushes which is at a distance of about 10
feet from their house, they found accused sexually
assaulting the prosecutrix and when they intervened,
accused abused them in filthy language referring to their
caste and saying that being a person belonging to higher
caste he is entitled to enjoy the girls and women of lower
caste and he also attempted to disrobe the mother of the
prosecutrix by pulling her saree and assaulted her. He
also gave threat of killing the prosecutrix and splashing
acid on her. The complaint further reveal that from the
prosecutrix the complainant and his wife came to know
that she was being sexually assaulted about 5-6 times by
the accused since one year under a promise to marry
her. After the incident, complainant approached the
brother of the accused and informed him about the
incident. Since there was threat by the accused, he did
not choose to file complaint immediately and hence the
delay in filing the complaint.
8. Based on the complaint, case is registered
against accused and the Investigation is taken up. The
statement of the prosecutrix as well as her mother is
recorded by the jurisdictional Magistrate under Section
164 Cr.P.C., wherein they have reiterated the allegations
made in the complaint. The accused is arrested and both
accused and prosecutrix are subjected to medical
examination. The incriminating articles collected from the
person of accused and prosecutrix are subjected to
chemical examination. After completion of the
investigation, charge sheet is filed against the accused
for the offences punishable under Sections 323, 354B,
376(3), 504, 506 I.P.C, Section 4(2), 5(L), 6 of POCSO
Act and Section 3(1)(r)(s), 3(2)(v) of SC & ST Act.
9. At the time when the first incident took place,
prosecutrix was aged 15 years. Even when the complaint
was filed, she was aged 16 years. As per Section 2(d) of
POCSO Act, child means any person below the age of 18
years and as such the provisions of POCSO Act are
attracted. Therefore, the arguments of the learned
counsel that prosecutrix was a consenting parties does
not enure the benefit of the accused. Being a child, her
consent is immaterial. Admittedly, the prosecutrix and
her parents belong to Adi Dravida Community which
comes under Scheduled Caste and as such the provisions
of SC & ST (Prevention of Atrocities) Act, are also
attracted. The medical report also indicate that
prosecutrix was sexually assaulted.
10. Even though already investigation is
completed and charge sheet is filed, having regard to the
fact that prosecutrix and her family members being
economically weak and downtrodden and more
specifically the threat given by the accused, the
possibility of he tampering with the witnesses and also
causing harm to the prosecutrix as well as her family
members cannot be ruled out. With the accused out on
bail, the possibility of prosecutrix and her family
members not in a position to give evidence without being
intimidated also cannot be ruled out. Charge sheet
makes out a strong prima facie case against the accused.
At the stage of considering the bail, the Court cannot
indulge in appreciation of the contents of the charge
sheet as in case of appreciation of evidence after trial.
11. So far as the decisions relied upon by the
accused are concerned, they are not applicable to the
peculiar facts and circumstances of the present case.
12. Thus, from the above discussion I hold that
this is not a fit case to grant bail to the accused and
accordingly I proceed to pass the following:
ORDER
Appeal is hereby dismissed.
Sd/-
JUDGE
RR
