Karnataka High Court

Ninganna vs The State Of Karnataka By on 7 August, 2023

Bench: Shivashankar Amarannavar

                                                   -1-
                                                         NC: 2023:KHC:27747
                                                         CRL.A No. 1164 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 7TH DAY OF AUGUST, 2023

                                               BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                 CRIMINAL APPEAL NO. 1164 OF 2023


                      BETWEEN:

                            NINGANNA
                            AGED ABOUT 24 YEARS
                            S/O CHANDRAPPA
                            R/AT YERAGOL VILLAGE AND POST,
                            YADGIR TALUK
                            YADGIR - 585 218.
                                                                 ...APPELLANT

                      (BY SRI TEJAS H, ADVOCATE)

                      AND:

                      1.    THE STATE OF KARNATAKA BY
                            HIRIYUR RURAL POLICE
                            CHITRADURGA
                            REP BY STATE PUBLIC PROSECUTOR
Digitally signed by
LAKSHMINARAYANA             HIGH COURT COMPLEX
MURTHY RAJASHRI
Location: HIGH
                            BENGALURU - 560 001.
COURT OF
KARNATAKA
                      2.    SMT. KAVITHA
                            W/O KUMARA NAIK
                            R/AT NEAR SIDDAGANGA PU COLLEGE
                            DOMBARAHALLI, MADANAYAKANAHALLI
                            BANGALORE TOWN, DASUDI
                            UMLANAIKANA TANDA
                            CHIKKANAYAKANAHALLI TALUK
                            TUMKURU DISTRICT - 562 162.
                                                               ...RESPONDENTS

                      (BY SRI S VISHWA MURTHY, HCGP FOR R1 & R2)
                             -2-
                                   NC: 2023:KHC:27747
                                    CRL.A No. 1164 of 2023




     THIS CRL.A IS FILED U/S 14(A)(2) OF SC/ST (POA) ACT
PRAYING TO RELEASE OF THE APPELLANT ON REGULAR BAIL
IN SPL.C.No.193/2022 (CR.No.290/2022) REGISTERED BY
HIRIYUR RURAL POLICE, CHITRADURGA/1ST RESPONDENT FOR
THE OFFENCE P/U/S 354(D), 376, 366(A), 34 OF IPC AND
SECTIONS 4, 8, 12 OF POCSO ACT AND SECTION 9, 10 OF
PROHIBITION OF CHILD MARRIAGE ACT AND SECTION
3(1)(w)(i)(ii) 3(2)(V) OF SC/ST (POA) ACT PENDING ON THE
FILES OF BEFORE THE SPECIAL 2ND ADDITIONAL DISTRICT
AND SESSIONS JUDGE CHITRADURGA.


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


                       JUDGMENT

1. This appeal is filed by the appellant - accused No.1,

praying to set-aside the order dated 09.02.2023 passed in

Crl.Misc.89/2023, by Special II Additional District and

Sessions Judge, Chitradurga, whereunder, the bail

application of the appellant - accused No.1 sought in

respect of Crime No.290/2022 of Rural Police Station,

Hiriyuru (Special Case No.193/2022) registered for the

offences under Sections 376, 366(A), 354(D) r/w Section

34 of the Indian Penal Code (for short hereinafter referred

to as 'IPC'), Sections 4, 8 and 12 of Protection of Children

from Sexual Offences Act, 1989 (for short hereinafter

NC: 2023:KHC:27747 CRL.A No. 1164 of 2023

referred to as 'POCSO Act'), Sections 9 and 10 of

Prohibition of Child Marriage Act, 2006 and Sections

3(1)(w)(i) & (ii) and 3(2)(v) of the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) Act, 1989

(for short hereinafter referred to as "the SC/ST (POA)

Act"), came to be rejected.

2. Heard the arguments of learned counsel for the

appellant and learned High Court Government Pleader for

respondent Nos.1 and 2.

3. Respondent No.2 - mother of the victim girl has filed

a complaint on 07.09.2022, stating that the appellant -

accused No.1 has enticed her daughter - victim girl,

aged 17 years, under the guise of loving and marrying

her, took her to his native place Yadgir and with the

supporters of his native (accused Nos.2 to 5), married the

victim girl in a temple and thereafter, committed forcible

sexual intercourse on her. A case came to be registered

for the offences under Sections 366(A), 376 and 354(D)

r/w Section 34 of IPC, Sections 4, 8 and 12 of the POCSO

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Act, Sections 9 and 10 of the Prohibition of Child Marriage

Act.

4. The police after completing investigation, filed the

charge sheet for the offences under Sections 376, 366(A),

354(D) r/w Section 34 of IPC, Sections 4, 8 and 10 of the

POCSO Act and Sections 9 and 10 of the Prohibition of

Child Marriage Act and Sections 3(1)(w)(i) & (ii)

and 3(2)(v) of the SC/ST (POA) Act.

5. The appellant - accused No.1 who is in judicial

custody has filed a bail petition in Crl.Misc.No.89/2023 and

the same came to be rejected by the impugned order

which is challenged in this appeal.

6. Learned counsel for the appellant would contend that

the alleged incident has taken place on 26.07.2022 and a

complaint came to be filed on 07.09.2022 and there is

delay in filing the complaint. In the statement recorded

under Section 164 of Cr.P.C, the victim girl did not state

the alleged forcible sexual intercourse by the appellant -

NC: 2023:KHC:27747 CRL.A No. 1164 of 2023

accused No.1 on her. The victim who has been examined

as PW1 has stated that she has given her statement

before the learned Magistrate as per the instructions of her

mother and maternal uncle. He further submits that the

photographs marked as Exs.D1 to D8 would reveal that

there is a love affair between the appellant - accused No.1

and the victim girl. None of the family members have filed

a missing complaint from 26.07.2022 till 07.09.2022. The

doctor who examined the victim girl has opined that there

is no evidence suggestive of recent sexual act or exposure.

As the charge sheet is filed, the appellant - accused No.1

is not required for custodial interrogation. Accused Nos.2

to 5 have already been granted bail by this Court. Without

considering all these aspects, the learned Special Judge

has passed the impugned order which calls for interference

by this Court. With this, he prayed to allow the appeal

and grant bail to the appellant - accused No.1.

7. Learned High Court Government Pleader would

contend that the victim girl is aged 17 years, the appellant

NC: 2023:KHC:27747 CRL.A No. 1164 of 2023

- accused No.1 enticed her under the pretext of marriage

and married her and thereafter, had forcible sexual

intercourse on her. The appellant - accused No.1 gave

threat to the victim girl. The charge sheet material shows

a prima facie case against the appellant - accused No.1

for the offences alleged against him. Considering all these

aspects, learned Special Judge has rightly rejected the bail

petition of the appellant - accused No.1, which does not

call for any interference by this Court. With this, he

prayed to dismiss the appeal.

8. The victim girl in her statement recorded under

Section 164 of Cr.P.C had stated that the appellant -

accused No.1 was acquainted with her and he used to

follow her when she was going to college. On coming to

know the same, the parents of the victim girl discontinued

her college education, sent her to Obalapur. The victim

also stated that the appellant - accused No.1 came to

Obalapur when she was alone in the house and took her to

Yadgir and married her on 26.07.2022 and on the same

NC: 2023:KHC:27747 CRL.A No. 1164 of 2023

day, in a room, he touched her body and harassed her.

There is no allegation of any forcible sexual intercourse by

the appellant - accused No.1 on the victim girl in the said

statement.

9. The victim girl has already been examined as PW1.

In her cross examination, she has admitted that in the

year 2020-21, her parents came to know that the victim

girl and the appellant - accused No.1 were having love

affair and therefore, she was sent to Obalapur. The

photographs which are marked at Exs.D1 to D8 also

support the said aspect that the victim girl and the

appellant - accused No.1 were having love affair. The

victim girl is aged 17 years and she is of the age of

understanding the consequences of her acts. The doctor

who examined the victim girl has also opined that there is

no evidence suggestive of recent sexual act. The

appellant - accused No.1 is in judicial custody since

28.09.2022 and as the charge sheet is filed, he is not

required for custodial interrogation. Without considering

NC: 2023:KHC:27747 CRL.A No. 1164 of 2023

all these aspects, the Special Court has passed the

impugned order rejecting the petition which calls for

interference by this Court. In the result, the following;

ORDER

The appeal is allowed. The order dated 09.02.2023

is set-aside. Crl.Misc.No.89/2023 filed by the appellant -

accused No.1 under Section 439 of Cr.P.C stands allowed.

The appellant - accused No.1 is ordered to be released on

bail in Crime No.290/2022 of Rural Police Station, Hiriyur,

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.