Sri. Pathragouda Alias ... vs The State Of Karnataka
2022 Latest Caselaw 12235 Kant

     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 30TH DAY OF SEPTEMBER, 2022

                          BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
            CRIMINAL APPEAL NO.100422 OF 2022
BETWEEN:

SRI. PATHRAGOUDA @ PUTRAGOUDA
S/O. HANUMAGOUDA POLICE PATIL,
AGE: 24 YEARS, OCC: DRIVER,
R/O. BHOCHANAHALLI VILLAGE,
TQ: KOPPAL, DIST: KOPPAL, PIN-583231.
                                       ...PETITIONER
(BY SHRI SANTOSH B. MALAGOUDAR., ADVOCATE)

AND:

1.    THE STATE OF KARNATAKA,
      THROUGH PSI ALWANDI
      POLICE STATION, R/BY ADDL. SPP,
      STATE PUBLIC PROSECUTOR OFFICE
      HIGH COURT OF KARNATAKA,
      DHARWAD BENCH.

2.    SMT. HULIGEMMA W/O NAGARAJ TALAVAR,
      AGE. 45 YEARS, OCC. HOUSEWIFE,
      R/O. BHOCHANAHALLI VILLAGE,
      TQ: KOPPAL, DIST:KOPPAL, PIN-583231.
                                         ...RESPONDENTS

(BY SHIR PRASHANTH V.MOGALI, HCGP FOR R1:
R2-SERVED AND UNREPRESENTED)

     THIS CRIMINAL APPEAL IS FILED U/SEC.14-A(2) OF
SC/ST, ACT SEEKING TO ALLOW THE APPEAL AND RELEASE
THE APPELLANT/ACCUSED ON BAIL IN CRIME NO.80/2022 OF
ALWANDI POLICE STATION, REGISTERED FOR THE OFFENCES
PUNISHABLE U/SEC.341, 506, 363, 376(2)(I), 342 OF THE IPC,
1860, SEC.6 OF POCSO, 2012 & SEC. 3(1)(S), 3(2)(VA) OF SC
& ST (POA) ACT, PENDING IN SPL.SC.POCSO(AC) NO.37/2022
ON THE FILE OF ADDITIONAL DISTRICT AND SESSIONS
JUDGE, FTSC-I, KOPPAL, IN THE INTEREST OF JUSTICE.
                                    -2-




                                             CRL.A No. 100422 of 2022


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

                           JUDGMENT

This appeal is filed by sole accused

challenging the order dated 25.08.2022 passed in

Spl.SC.POCSO(AC) No.37/2022 by the Additional

District and Sessions Judge, FTSC-I, Koppal

(hereinafter referred to as 'Special Judge', for

brevity), whereunder the petition filed by the

appellant/accused under Section 439 of The Code

of Criminal Procedure, 1973 (hereinafter referred

to as 'Cr.P.C.', for brevity) seeking bail in respect

of Crime No.80/2022 of Alwandi Police Station

registered for the offences punishable under

Sections 341, 506, 363, 376(2)(I), 342 of the

Indian Penal Code, 1860 (hereinafter referred to as

'IPC', for brevity), Sections 6 of Protection of

Children From Sexual Offences Act, 2012

(hereinafter referred to as 'POCSO', for brevity)

and Sections 3(1)(s), 3(2)(5a) of The Scheduled

CRL.A No. 100422 of 2022

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

and learned High Court Government Pleader for

respondent No.1-State. Respondent No.2 in spite

of service of notice remained absent and

unrepresented.

3. The case of the prosecution is that, one

Smt. Huligemma W/o Nagaraj Talawar, the mother

of victim girl has filed complaint stating that her

daughter i.e, victim girl is her younger child and

she has passed her 10 t h standard and residing at

house. It is further stated that on 09.05.2022 at

7:30 a.m, the victim girl informed that she was

going to buy grocery and she did not return back

even after at 10:00 a.m, and as such, she was

CRL.A No. 100422 of 2022

searched everywhere but did not find any

information regarding her. The complainant

assumed that her daughter might have gone to

Udupi, where her husband is working. It is further

stated that on 13.05.2022, the victim girl at

8:15 a.m, came and she was looked terrified and

she narrated to the complainant that

appellant/accused used to stalk her and used to

told the victim girl that he will marry her and she

told the appellant/accused that he is married man

and is having a child and she belongs to Valmiki

caste and she is still minor and warned the

appellant/accused that she will inform her family

about his wrong intentions but, he did not heed to

such admonitions. The victim girl further alleged

that on 09.05.2022 at 7:30 a.m, she went to buy

groceries and at 08:00 a.m, when she was passing

by the house of the appellant/accused, she was

intercepted by him and told her that she should

CRL.A No. 100422 of 2022

accompany him to Bengaluru, the same day and if

she denied, he threaten to kill her and as such,

she was taken to Koppal by bus and thereafter, the

appellant/accused took her to Bengaluru, Anekal

from Hospet. The appellant/accused took a rented

room belonging to one Basavaraj at Anekal,

Bengaluru and there she was forced to have sexual

intercourse for 2-3 times against her will. On

12.05.2022 at 4:00 p.m, when she was in the room

with accused/appellant, he received a call from his

brother Beerappa S/o Mudakappa Havalannavar,

who informed him that the parents of the victim

girl will lodge a complaint and asked him to bring

her back to the village if in case he has taken her.

The appellant/accused took her from Anekal,

Bengaluru and on 13.05.2022 at 8:00 a.m, he

dropped her outside the village and threatened her

that she will be killed if she revealed about the

incident. The complainant solaced her daughter

CRL.A No. 100422 of 2022

and thereafter, she filed complaint after intimating

the same to her husband. The said complaint came

to be registered in Crime No.80/2022 of Alwandi

Police Station for the offences punishable under

Sections 341, 506, 363, 376(2)(I), of IPC, 1860,

Sections 6 of POCSO Act and Sections 3(1)(s),

3(2)(5a) of SC & ST (POA) Act. The

appellant/accused came to be arrested on

14.05.2022 and he is in judicial custody. The

appellant/accused filed bail application in

Spl.SC.POCSO(AC) No.37/2022 seeking bail and

the same came to be rejected by learned Special

Judge by order dated 25.08.2022. The

appellant/accused has challenged the said order in

the instant appeal.

4. Learned counsel for the appellant would

contend that, the victim girl went missing on

09.05.2022 and the mother of victim girl did not

choose to file any complaint for a period of 5 days.

CRL.A No. 100422 of 2022

It is his further submission that in the complaint it

is mentioned that, the victim girl was taken to the

house of one Basavaraj at Anekal so also, in the

statement of victim girl recorded under Section

164 of Cr.P.C. But as per the spot mahazar as

shown by the victim girl, it is the house of one

Raghu at Mailasandra, which is contrary to the said

statement of the victim girl. It is his further

submission that as per the medical examination

report, the victim girl last menstrual period was 8

days prior to her examination and she was

examined on 14.05.2022 and the alleged sexual

assault is between 09.05.2022 and 11.05.2022 and

it being the menstrual period, there is no

possibility of any sexual intercourse. It is his

further submission that as per the history recorded

by the doctor, the last day of sexual intercourse is

three days prior to her examination, which might

have taken place on 11.05.2022. It is his further

CRL.A No. 100422 of 2022

submission that the doctor, who examined the

victim girl has noted that there are no injuries on

the body of the victim girl and therefore, it rules

out any forcible sexual intercourse. The victim girl

has stated that she was dropped at outskirt of her

village. In her statement recorded under Section

164 of Cr.P.C, she has stated that she was dropped

near Alwandi police station. Therefore, there are

contradictions with regard to place of dropping of

the victim girl which shows the false implication of

this appellant/accused. Without considering all

these aspects, the learned 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 for                   respondent No.1      would

contend that, the date of birth of the victim girl as

per her school records is 21.08.2006 and she is

CRL.A No. 100422 of 2022

less than 16 years of age. It is his further

submission that the contradiction in the

statements of the victim girl and the place of her

dropping, cannot be gone into in detail in

considering the bail application of the

appellant/accused. The doctor who examined the

victim girl has noted that her hymen is ruptured.

In the statement recorded under Section 164 of

Cr.P.C, the victim girl has specifically stated the

threat given by the appellant taking her to

Bengaluru and Anekal and forcibly having sexual

intercourse on her. It is his further submission

that the appellant/accused is a married man and

for his lust, he has committed this alleged act. The

charge-sheet material shows prima-facie case

against the appellant/accused for the offences

alleged against him. It is his further submission

that considering all these aspects, the learned

Special Judge has rightly passed the impugned

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CRL.A No. 100422 of 2022

order which does not call for 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

charge-sheet papers and the impugned order.

7. The accusation against this appellant is

that, he kidnapped the victim girl on 09.05.2022

and took her to Bengaluru and Anekal and kept her

in a rented premise and had forcible sexual

intercourse on her by giving life threat. The date

of birth of the victim girl as per her school records

is 21.08.2006 and she is aged 15 years 8 months,

as on the date of alleged offence. As per statement

of the victim girl, appellant/accused forcibly took

her by giving life threat from her village to

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CRL.A No. 100422 of 2022

Bengaluru, Anekal and to a rented premise, where

he committed forcible sexual intercourse on her.

The doctor who examined the victim girl has noted

that the hymen is ruptured. The contradictions

pointed out by the learned counsel for the

appellant in the complaint, in the statements of

the victim girl recorded by the police and the

Magistrate under Section 164 of Cr.P.C, can not be

gone in detail while considering the bail petition of

the appellant. Merely because, the victim girl had

monthly period 8 days prior to her examination

and during the period of menstrual cycle, there is

no possibility of forcible sexual intercourse on the

victim girl, cannot be appreciated since the victim

girl has specifically stated that the appellant/

accused had forcible sexual intercourse on her

during that period. The appellant/accused is a

married man having wife and child. The

appellant/accused for satisfying his lust alleged to

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CRL.A No. 100422 of 2022

have taken the victim girl and had sexual

intercourse with her. The charge-sheet material

show prima-facie case against the

appellant/accused for the offence alleged against

him.

8. Considering all these aspects, learned

Special Judge has rightly rejected the bail petition

of the appellant/accused, which does not call for

any interference by this Court.

9. Hence, the Criminal Appeal is dismissed.

Sd/-

JUDGE

AM