Mr. Ajmal @ Ajmal Hussain vs State Of Karnataka
2023 Latest Caselaw 936 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 16TH DAY OF JANUARY, 2023          R
                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

            CRIMINAL PETITION NO.9517/2022

BETWEEN:

MR. AJMAL @ AJMAL HUSSAIN
S/O. IBRAHIM,
AGED ABOUT 24 YEARS,
R/AT KOPPALA GANESH,
THOTA HOUSE
ARKULA VILLAGE,
MANGALURU-574 143.                          ... PETITIONER

         (BY SRI VIVEK REDDY, SENIOR COUNSEL FOR
              SRI MUZAFFAR AHMED, ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       BY BANTWAL RURAL POLICE STATION,
       BANTWALA TALUK,
       DAKSHINA KANNADA DISTRICT,
       REP. BY LEARNED STATE
       PUBLIC PROSECUTOR
       HIGH COURT BUILDING
       BENGALURU-560 001.

2.     MR.ROYASTON ROSERIO
       D/O. BENZIL ROSARIO,
       AGED ABOUT 54 YEARS,
       R/AT HOUSE NEAR BY MILK DAIRY,
       MERAMMAJALU VILLAGE-574 143
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      BANTWALA TALUK,
      D.K. DISTRICT.                             ... RESPONDENTS

           (BY SRI K.K.KRISHNA KUMARA, HCGP FOR R1)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.135/2021 (SPL.C.NO.1/2022) OF BUNTWALA RURAL
POLICE STATION, D.K. DISTRICT FOR THE OFFENCES P/U/S.
376, 506 R/W. SECTION 34 OF IPC AND SECTIONS 4, 5(G) AND
6 OF POCSO ACT.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 06.01.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                            ORDER

This petition is filed under Section 439 of Cr.P.C. seeking

regular bail of the petitioner/accused No.2 in Crime No.135/2021

of Buntwala Rural Police Station, Buntwala Sub-Division,

Dakshina Kannada, for the offence punishable under Sections

376-D and 506 read with Section 34 of IPC and Sections 4, 5(G)

and 6 of Protection of Children from Sexual Offences Act, 2012.

2. Heard the learned Senior counsel Sri Vivek Reddy for

the petitioner and the learned High Court Government Pleader

appearing for the respondent No.1-State.

3. The factual matrix of the case of the prosecution is

that this petitioner and also another accused person subjected

the minor girl, who is aged about 16 years for sexual act as

against her wish and also caused life threat not to disclose the

same to anybody else and continuously subjected her for sexual

act for five months by threatening her. Hence, the police have

registered the case, investigated the matter and filed the charge

sheet.

4. After filing of the charge-sheet, this petitioner, who

has been arraigned as accused No.2 had approached this Court

by filing Crl.P.No.1600/2022 and this Court, vide order dated

31.05.2022, considered the matter on merits and in Para Nos.7

and 8, comes to the conclusion that the material on record

discloses that the victim was subjected to sexual act and also in

164 statement, the victim girl narrated the same and the fact

that she is aged about 16 years is not in dispute. The contention

was also raised that other accused also subjected the victim for

sexual act and taking note of the said submission, this Court

arrived at the conclusion that, even assuming that victim was

subjected to sexual act by different persons, the girl below the

age of 16 years is not vulnerable, even considering the

submission of the learned counsel for the petitioner. This Court

also taken note of 164 statement of the victim and medical

evidence in Para No.8 and comes to the conclusion that it is a

heinous offence by this petitioner as well as another accused

person by subjecting the girl for sexual act one after the other

and continuously subjected her for sexual act for five months.

5. After dismissal of this petition, once again, both the

accused Nos.1 and 2 have approached the Additional District and

Sessions Judge/FTSC-II (POCSO), D.K., Mangaluru in Spl. Case

No.1/2022 and the Court rejected the bail application vide order

dated 22.08.2022. Hence, the petitioner has approached this

Court by filing the present petition.

6. The main contention of the learned Senior counsel

appearing for the petitioner is that, only bald allegations are

made against this petitioner and the victim was also examined

as P.W.1 before the Trial Court and her evidence is very clear

that she has lodged several complaint against different persons

and hence, the victim cannot be considered as an innocent. It is

also his submission that the evidence of the victim has already

been completed and the medical reports are also filed and other

witnesses, who have been examined as P.Ws.2 to 5 have not

supported the case of the prosecution.

7. The counsel has also filed a memo along with certain

documents before this Court i.e., copies of FIR in Crime

No.31/2022, 164 statement, complaint and charge-sheet. The

counsel also relied upon the depositions of special case arising in

Crime No.31/2022, copy of FIR in Crime No.133/2021, copy of

the complaint, copy of 164 statement, copy of the charge-sheet

and copy of the depositions in special case arising in Crime

No.133/2021.

8. The counsel, relying upon these documents would

vehemently contend that the victim is having the habit of filing

the complaints one after the other and the Court has to look into

the conduct of the victim in filing the complaint against different

persons making similar allegations. The counsel also brought to

notice of this Court that, Crime No.11/2022 was registered and

in that complaint, she says that, when she went to book a ticket

to go to Hariyana, she went along with accused persons and

stayed for a period of 2 days and she was brought back and

when she was making an effort to go to Hariyana again, she was

suspected in the railway station and was sent to remand home

and copy of the complaint also discloses the very conduct of the

victim.

9. Per contra, learned High Court Government Pleader

appearing for the respondent No.1-State would submit that the

victim is examined before the Trial Court and she has supported

the case of the prosecution and narrated the incident as to how

this petitioner and other accused person subjected her for sexual

act one after the other calling upon her to school premises and

threatened her life and repeatedly subjected her for sexual act

for a period of five months under threat. This Court has already

taken note of the material available on record and rejected the

bail petition and there is no any changed circumstances and the

only changed circumstance narrated by the learned Senior

counsel for the petitioner is that she has given one more

complaint in Crime No.11/2022 that when she was alone, the

accused persons in the said crime took her to Karwar and in that

case also, investigation has been completed and charge-sheet

was filed. Hence, no grounds are made out to enlarge the

petitioner on bail in a successive bail petition and the victim is

not vulnerable for sexual act even taking note of her conduct.

Hence, prayed this Court to reject the bail petition.

10. Having heard the learned Senior counsel for the

petitioner and learned High Court Government Pleader appearing

for the respondent No.1-State, this Court rejected the bail

petition on 31.05.2022 in Crl. P. No.1600/2022 after filing of the

charge-sheet and reasons are assigned in Para Nos.7 and 8 and

similar argument was made in the earlier petition that victim had

made an allegation against one more accused that she was

subjected to sexual act. This Court having taken note of the said

arguments, in Para No.7 held that, even assuming that victim

was subjected to sexual act by different persons, the girl below

the age of 16 years is not vulnerable to sexual act. Now also,

similar attempt is made by the learned Senior counsel for the

petitioner that one more case is registered in Crime No.11/2022

and to that effect, he has also produced the statement of the

victim, copy of the complaint as well as the charge-sheet. But,

the fact is that, the victim is aged about 16 years and when she

was pursuing her education in PUC, this petitioner and other

accused person called her near the school and subjected her for

sexual act one after the other and threatened her that not to

disclose the same to anybody and continuously had sexual

intercourse for a period of five months under threat. When the

victim complained about stomach pain with her mother, she was

taken to the hospital and then, she revealed the act of this

petitioner and other accused person. No doubt, the victim made

an allegation against other accused person by name Mr. Rizwan,

the police have also investigated the matter and filed the

charge-sheet in the said crime and subsequently, in the month

of April, 2022 also, one more case is registered against other

accused persons, wherein she has made the complaint that when

she was alone in the railway station to book a ticket to go to

Hariyana, at that time, the accused persons in Crime

No.11/2022 took her saying that they would get the ticket at

Karwar and subjected her for sexual act and she has also

explained under what circumstance, she was taken to Karwar

and mere filing of cases against other accused persons is not a

ground to enlarge the petitioner on bail and the Court has to

look into the facts of each case and in each case, the allegation

is made that she was subjected to sexual act when she was a

minor. Apart from that, filing of cases against different persons

is not a ground to enlarge the petitioner on bail and even

assuming that the character of the victim is not good, she is not

vulnerable to sexual act by any person.

11. This Court would like to rely upon the judgment of

the Apex Court in STATE OF PUNJAB VS. GURMIT SINGH

AND OTHERS reported in (1996) 2 SCC 384, wherein in an

offence under Section 376 of IPC, the Apex Court held that

where there is some acceptable material on record to show that

the victim was habituated to sexual intercourse, no such

inference like the victim being a girl of "loose moral character" is

permissible to be drawn from that circumstance alone. Even if

the prosecutrix, in a given case, has been promiscuous in her

sexual behaviour earlier, she has a right to refuse to submit

herself to sexual intercourse to anyone and everyone because

she is not a vulnerable object or prey for being sexually

assaulted by anyone and everyone. No stigma, like the one as

cast in the present case should be cast against such a witness by

the Courts, for after all it is the accused and not the victim of

sex crime who is on trial in the Court.

12. It is also important to note that, in the case on hand,

the victim was examined as P.W.1. On perusal of the depositions

which is placed before the Court, she has narrated the incident

and supported the case of the prosecution and the fact that the

witnesses, who have been examined as P.Ws.2 to 5 have not

supported the case of the prosecution cannot be a ground to

enlarge the petitioner on bail and the Court has to take note of

the heinous offence committed by the petitioner subjecting the

victim girl, who is a minor to sexual act and even in a case of

Section 376 of IPC, the very evidence of prosecutrix alone is

enough to convict the accused person.

13. In this regard, this Court would like to rely upon the

judgment of the Apex Court in MUKESH AND ANOTHER VS.

STATE (NCT OF DELHI) AND OTHERS reported in (2017) 2

SCC (CRI) 673, wherein the Apex Court with regard to

evidentiary value of sole testimony of prosecutrix and also the

manner of appreciation of evidence held that, conviction can be

based on sole testimony of prosecutrix and there is no rule that

testimony of prosecutrix cannot be acted upon without

corroboration and such corroboration is not a rule of law but a

requirement of prudence and testimony of prosecutrix stands on

a higher pedestal than injured witness. Hence, the very

contention of the learned Senior counsel for the petitioner that

other witnesses i.e., P.Ws.2 to 5 have not supported the case of

the prosecution cannot be a ground to exercise the discretion in

favour of the petitioner since, the victim has supported the case

of the prosecution before the Trial Court when she was

examined.

14. Hence, I do not find any force in the contention of

the learned Senior counsel appearing for the petitioner that

Court has to take note of the evidence of P.Ws.2 to 5.

Admittedly, the victim was a minor and heinous offence of sexual

act was committed by this petitioner along with other accused

person on the victim continuously for a period of five months

causing threat to the victim. Hence, I do not find any merit in

the successive bail petition to enlarge the petitioner on bail and

mere registration of one more case at the instance of victim

against other accused person is not a changed circumstance to

exercise the discretion in favour of the petitioner in a successive

bail petition.

15. In view of the discussions made above, I pass the

following:

ORDER

The bail petition is rejected.

Sd/-

JUDGE

ST