Raju D vs State By Kawalande Police
2022 Latest Caselaw 11859 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 15 T H DAY OF SEPTEMBER, 2022

                         BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

        CRIMINAL APPEAL NO.1417 OF 2022

BETWEEN:

Raju D
S/o Dodd egowda
Aged about 63 years
R/at Tagad uru Village
Nanjangud Taluk
Mysuru District-571119
                                            ...Appellant
(By Sri Jag adeesh C.M., Advocate)

AND:

1.    State by Kawalande police
      Mysuru District, Mysuru
      Represented by Public Prosecutor
      State of Karnataka
      Hig h Court Build ing
      Beng aluru-560009

2.    Smt. Mahad evamma
      W/o Mahadevaiah
      Aged about 45 years
      R/at Tag ad uru Villag e
      Nanjangud Taluk
      Mysuru District-571119
                                         ...Respondents
(By Sri K. Rahul Rai, HCGP for R1;
    R2 - served)
                                         :: 2 ::


      This      Criminal           Appeal      is   filed   under     Section
14(A)(2) of SC/ST (POA) Act, praying to set aside the
order p assed by the VI Additional District and Spl.
Judge      at    Mysuru           in    Sp l.Case    No.260/2022       dated
21.07.2022 for the offence punishable under Section
341, 506, 376 of IPC and etc,.

      This Criminal Appeal coming on for admission
this d ay, the Court d elivered the following:

                                  JUDGMENT

Heard Sri Jagadeesh C M, learned counsel for

the appellant and the learned High Court

Government Pleader for respondent No.1-State.

Respondent No.2 has been served with notice but

she has not appeared before the Court.

2. This is an appeal filed under Section

14(A)(2) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act (SC/ST Act for

short), challenging the order dated 21.07.2022

passed by the VI Additional District and Special

Judge, Mysuru in Spl.C.No.260/2022, rejecting

the appellant's application filed under Section 439 :: 3 ::

of Cr.P.C., in connection with Crime No.40/2022

registered by the Kowlande Police for the offences

punishable under Sections 341, 506 and 376 of

IPC and Sections 3(1)(r), 3(2)(v)(v-a) and &

3(1)(w)(i) of SC/ST Act.

3. On 15.04.2022, an FIR was registered at

the instance of second respondent for the offences

punishable under Sections 341, 506 and 376 of

IPC and Sections 3(1)(r), 3(2)(v)(v-a) and &

3(1)(w)(i) of SC/ST Act. The report made by the

second respondent would also show that when she

was grazing sheep and goat in the forest area on

11.04.2022, the appellant raped her. But the

learned counsel for the appellant drew my

attention to the statement given by respondent

No.2 on 12.04.2022 in the hospital. In the said

statement, it is recorded that when she was

grazing goats, a wild boar came and knocked her

down causing injury near her private part. But :: 4 ::

when she gave a report to the police on

15.04.2022 for registration of FIR, she admitted to

have given such a statement on 12.04.2022 in the

hospital fearing for reputation to the family and

she stated further that actually she was raped by

the appellant. When she gave history at

Cheluvamba hospital, Mysuru, she did not take the

name of the appellant, but stated that she was

subjected to rape by a stranger. When she gave

statement before the Magistrate under Section 164

of Cr.P.C., she stated that the appellant dragged

her forcibly, tied her mouth and raped her and as

a result, she sustained bleeding from her genital

part. She also stated before the Magistrate that

she was threatened by the appellant at that time.

During investigation, the investigator recorded

statement of one Lakshmamma, who was also

grazing cattle along with second respondent. She

stated that when she saw second respondent

sitting near a bush being tired. The appellant was :: 5 ::

also there. When she enquired her, the second

respondent said that there was bleeding from her

genital. She offered water to her. Later on she

came to know that because the appellant was

present at that time, he might have committed

rape. Her statement does not indicate that she is

an eye witness.

4. The FSL report is also available and it

does not show presence of seminal stains on the

clothes of respondent No.2 and it has also

negatived the presence of blood stains.

Respondent No.2 complained of profuse bleeding;

it it was so, her clothes should have stained with

blood, but the report shows no stains.

5. These are the discrepancies that can be

noticed at this stage. In fact the court below has

noticed these inconsistencies and the

discrepancies in the prosecution case, and has also

held that the prosecution has to prove its case.

:: 6 ::

Yet it has come to conclusion that prima-facie

materials are available. This finding of the trial

court cannot be accepted. Therefore it can be

concluded that order impugned in this appeal

cannot be sustained. The court below ought to

have granted bail. Hence the following:

ORDER

Appeal is allowed.

         The       order     passed         by        the     VI
     Additional District and Special                   Judge,
     Mysuru          dated            21.07.2022              in

Spl.C.No.260/2022 on the application of the appellant under Section 439 Cr.P.C., is set aside. The said application is allowed.

The appellant is admitted to bail on his executing a bond for Rs.1,00,000/-

     (One    Lakh     only)       and      providing         two
     sureties      for     the        likesum         to     the
     satisfaction     of    the    trial    court.           The

appellant is also subjected to following conditions:-

:: 7 ::

i. He shall not tamper the evidence and threaten the witnesses.

ii. He shall regularly appear before the trial court till conclusion of the trial.

iii. He shall not get involved in any other criminal case/s in future. In case any FIR is registered against him, the same will be considered for cancellation of bail.

Sd/-

JUDGE

Kmv/-