Dhanush vs State By Women Police
2022 Latest Caselaw 12023 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 21 S T DAY OF SEPTEMBER, 2022

                          BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

        CRIMINAL APPEAL NO.1112 OF 2022

BETWEEN:

Dhanush
S/o Ramaiah K.P.
Aged about 20 years
R/at Kestur Village
Kora Hobli
Tumakuru Taluk-572101
                                                 ...Appellant
(By Sri Lokesh Kumar K.S., Advocate)

AND:

1.    State by Women Police
      Tumakuru Sub Division
      Rep. by SPP
      Hig h Court Build ing
      Bang alore-560001

2.    Nisarg a
      D/o Ravikumar D
      16 years
      R/at Kestur Village
      Kora Hob li
      Tumkur Taluk-572101
                                        ...Respondents
(By Sri K. Nag eshwarapp a, HCGP for R1;
     R2- Served)


      This   Criminal   Appeal   is   filed   under   Section
14(A)(2) of SC/ST (POA) Act, p raying to enlarg e the
                             :: 2 ::


petitioner/app ellant on b ail where respond ent p olice
have arrested appellant and by reg istering a case
against the petitioner/accused No.1 in CR.No.3/2022,
Spl.C.No.49/2022 and Crl. Misc. No.450/2022 alleged
offence p unishab le und er Section 6 and 17 of POCSO
Act and Section 363, 376, 506 read with Section 34 of
IPC and Section 3(2)(v) of SC/ST (POA) Act.

     This Criminal Appeal coming on for orders this
day, the Court delivered the following:

                         JUDGMENT

This is an appeal filed under Section 14(A)(2)

of the Schedule Caste and Schedule Tribe

(Prevention of Atrocities) Act ['SC/ST Act' for

short] challenging the order dated 11.04.2022

passed by the Additional District and Sessions

Judge, FTSC-1, Tumakuru, rejecting the

appellant's application under Section 439 Cr.P.C.

2. Heard Sri Lokesh Kumar K S, learned

counsel for the appellant and the learned High

Court Government Pleader for respondent No.1-

State. Learned HCGP submits a report stating that

respondent No.2 has been served through :: 3 ::

concerned police. But there is no representation

on behalf of respondent No.2.

3. On 05.01.2022, an FIR was registered for

the offence under Section 363 read with Section

34 of IPC in Crime No.3/2022 at the instance of

the father of the victim girl. He reported to the

police that on 05.01.2022 the appellant and

another woman kidnapped his daughter.

Thereafter, after tracing of the girl, offence under

Section 376 of IPC, Sections 6 and 17 of POCSO

Act and Section 3(2)(v) of SC/ST Act were

included.

4. It is the argument of the appellant's

counsel that reading the statement given by the

girl and the history given by her before the doctor,

an inference may be drawn at this stage that there

was a love affair between the girl and the

appellant. They both spent time for two days. In

this view her statement that she was forcibly :: 4 ::

subjected to intercourse by the appellant is

difficult to be believed. He also submits that the

appellant is the sole earning member of the family

and since he is in jail for the last 9 months, he

may be admitted to bail. He is ready to abide by

any conditions that may impose by this Court. He

prays for setting-aside the order passed by the

court below.

5. Sri K.Nageshwarappa, learned HCGP

submits that the FIR came to be registered without

any delay. Medical report clearly says that there

was signs of recent sexual intercourse. Even

assuming that there was a love affair, the age of

the girl was 16 years and therefore her consent is

insignificant.

6. I have perused the records. The

statement of the girl before the police and also the

history given before the doctor clearly shows that

both appellant and the girl have spent time for two :: 5 ::

days, they had been to Devarayanadurga betta.

Some exaggerations in the statements cannot be

ruled out. Any way the trial court has to take a

decision in that regard.

7. As argued by the Government Pleader,

the medical report says that there was signs of

recent sexual intercourse. The court below has

denied bail applying Section 29 of POCSO Act. Yet

the fact remains that age of the appellant is 20

years. He has been in custody for the last 9

months and if his presence can be secured before

the court, there is no justification in denying bail.

Therefore the order of the court below cannot be

sustained and the appeal deserves to be allowed.

Hence the following:

ORDER

Appeal is allowed.

The order passed by the Additional District and Sessions Judge, FTSC-1, Tumakuru dated 11.04.2022 in :: 6 ::

Crl.Misc.No.450/2022 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:-

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 criminal case/s in future. In case of any FIR is registered against him, the same will be considered for cancellation of bail.

Sd/-

JUDGE Kmv/-