Karnataka High Court

Dyamappa G @ Akash vs The State Of Karnataka on 18 August, 2023

Bench: Shivashankar Amarannavar

                                                     -1-
                                                              NC: 2023:KHC:29291
                                                           CRL.A No. 871 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 18TH DAY OF AUGUST, 2023

                                                BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                  CRIMINAL APPEAL NO. 871 OF 2023


                      BETWEEN:

                            DYAMAPPA G @ AKASH,
                            S/O LATE HANUMANTHAPPA,
                            AGED ABOUT 20 YEARS,
                            RESIDING AT: HOLAGUNDI VILLAGE,
                            HOOVENA HADAGALI TALUK,
                            VIJANAGAR DISTRICT - 583 217.
                                                                    ...APPELLANT
                      (BY SRI. CHANDAN B.V., ADVOCATE FOR
                          SRI. B. SIDDESWARA, ADVOCATE)

                      AND:

                      1.    THE STATE OF KARNATAKA
                            BY DEVANAHALLI POLICE STATION
                            BANGALORE, REPRESENTED BY ITS PUBLIC
Digitally signed by         PROSECUTOR, HIGH COURT COMPLEX,
LAKSHMINARAYANA
MURTHY RAJASHRI             BANGALORE - 560 001.
Location: HIGH
COURT OF
KARNATAKA             2.    SMT. KAVYA G.P.,
                            AGED ABOUT 28 YEARS,
                            OFFICER, LTO DISTRICT,
                            CHID PROTECTION UNIT,
                            DC OFFICE, BENGALURU,
                            KARNATAKA - 562 110.
                                                                 ...RESPONDENTS
                      (BY SRI. M. DIVAKAR MADDUR, HCGP FOR R1;
                          R2 SERVED AND UNREPRESENTED)
                                -2-
                                            NC: 2023:KHC:29291
                                         CRL.A No. 871 of 2023




     THIS CRL.A. IS FILED UNDER SECTION 14(A) (2) OF
SC/ST (POA) ACT, 2015 PRAYING TO SET ASIDE THE ORDER
DATED    29.04.2023   OF   CRL.MISC.NO.721/2023      OF   ADDL.
DISTRICT    AND   SESSIONS     JUDGE,   FTSC-III,   BANGALORE
RURAL DISTRICT, BANGALORE ENLARGE THE APPELLANT ON
BAIL IN CR.NO.1/2023 IN SPL.C.C.NO.2025/2022 ON BAIL IN
THE SPL.C.C.NO.521/2023 OF DEVANAHALLI POLICE STATION
FOR THE OFFENCE P/U/S.376(2)(n) OF IPC SEC.4,6 OF POCSO
ACT 2012 AND SEC.3(1)(w),3(2)(v),(V-A) OF SC/ST (POA) ACT
SEC.9 OF CHILD MARRIAGE ACT WHICH IS NOW PENDING
BEFORE THE LEARNED FTSC III HONBLE COURT.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal is filed by the accused praying to set aside

the order dated 29.04.2023 passed in Criminal Miscellaneous

No.721/2023 by the Addl. District and Sessions Judge, FTSC-

III, Bangalore Rural District, Bangalore, where under the bail

petition filed by the appellant/accused No.1 sought in respect of

Crime No.1/2023 of Devanahalli Police Station registered for

the offence punishable under Section 376(2)(n) of Indian Penal

Code, Sections 4 and 6 of Protection of Children from of Sexual

Offences Act, 2012 and Section 3(1)(r), 3(1)(s) 3(1)(w),

NC: 2023:KHC:29291 CRL.A No. 871 of 2023

3(2)(v), 3(2)(v-a) of Scheduled Caste and Schedule Tribe of

(Prevention of Atrocities) Act, 1989 came to be rejected.

2. Heard learned counsel for the appellant and learned

High Court Government Pleader for respondent No.1/State. In

spite of service of notice to respondent No.2/Complaiant she

remained absent and has been unrepresented.

3. It is the case of the prosecution that, the victim girl,

aged about 16 years, and when she was studying 10th

standard, came in contact with the appellant/accused and later

they became lovers. Subsequently, on 18.03.2021 the

appellant/accused married the victim with the consent of her

family members. Thereafter, the appellant/accused, who had

been in the habit of drinking alcohol, after consuming, used to

assault the victim girl under intoxication and he used to harass

her physically and mentally and therefore, once the victim had

consumed the poison. Thereafter, victim went to her sister's

house and later, her sister called the child helpline and

thereafter, a complaint came to be lodged. After investigation,

charge sheet came to be filed for the above said offences

including the offence under Section 9 of the Child Marriage Act.

NC: 2023:KHC:29291 CRL.A No. 871 of 2023

The appellant/accused came to be arrested on 08.01.2023 and

he is in judicial custody. The appellant/accused filed Criminal

Miscellaneous No. 721/2023 seeking bail and the same came to

be rejected by order dated 29.04.2023 which is challenged in

this appeal.

4. The learned counsel for the appellant would contend

that there was a love affair between the appellant and victim

girl and the appellant married the victim girl with the consent of

her family members on 18.03.2021. The statement of victim

girl has been recorded under Section 164 of Cr.P.C wherein

there is no allegation of any forcible sexual intercourse made

by this appellant/accused. The victim girl was of the age of

understanding the consequences of her acts. Without

considering 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 and grant bail to

the appellant/accused.

5. Per contra, learned High Court Government Pleader

would contend that the victim was aged about 16 years and

when she was in 10th standard, she came in contact with the

NC: 2023:KHC:29291 CRL.A No. 871 of 2023

appellant/accused. The victim girl was belonging to a Scheduled

Caste and appellant/accused was belonging to Upper Caste.

The appellant/accused instigated the victim girl to love him and

during her minority, appellant/accused married her and had

sexual intercourse with her. Appellant/accused used to come

home under intoxication and used to assault the victim girl.

Therefore, victim girl went her sister's house and thereafter,

filed a complaint. The doctor who examined victim girl has

opined that her hymen is not intact. These charge sheet

materials show prima facie case against the appellant/accused

for the offence alleged against him. Considering all these

aspects, the learned Special Court has rightly rejected the bail

petition of the appellant/accused. With these aspects, he

prayed to dismiss the appeal.

6. As per the prosecution case, the date of birth of

victim girl is 18.02.2006. The statement of victim girl recorded

under Section 164 of Cr.P.C. reveals that she was in love with

this appellant/accused. The appellant/accused married her on

18.03.2021 in a temple and thereafter, victim girl went to the

house of appellant/accused and stayed there for one and half

months and thereafter, she came and resided in the house of

NC: 2023:KHC:29291 CRL.A No. 871 of 2023

her grandmother. There is no allegation of any forcible sexual

intercourse by the appellant/accused on the victim girl as per

the said statement recorded under Section 164 of Cr.P.C. The

victim girl is of the age of understanding the consequence of

her acts. As charge sheet is filed the appellant/accused is not

required for custodial interrogation, the apprehension of the

prosecution is that, if the appellant is granted bail, there are

chances of threatening the complainant-victim girl and other

prosecution witnesses. The said apprehension can be met with

by imposing stringent conditions. Without considering all these

aspects, the learned Special Court has erred in rejecting the

bail petition of the appellant/accused. In the result the

following;

ORDER

The appeal is allowed.

The order dated 29.04.2023 passed in Criminal

Miscellaneous No. 721/2023 by the Additional District and

Session Judge, FTSC-III, Bangalore Rural District

Bangalore is set aside. The bail petition filed by the

appellant/accused stands allowed and the

appellant/accused is ordered to be released on bail in

NC: 2023:KHC:29291 CRL.A No. 871 of 2023

Crime No.1/2023 of Devanahalli Police Station, subject to

the following conditions;

a. The appellant-accused 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 Trial Court;