Mohiddin S/O Davalsab Negalur vs The State Of Karnataka
2023 Latest Caselaw 4287 Kant

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                                                         CRL.A No. 100130 of 2023




                                IN THE HIGH COURT OF KARNATAKA

                                          DHARWAD BENCH

                              DATED THIS THE 12TH DAY OF JULY, 2023

                                                BEFORE

                              THE HON'BLE MR JUSTICE ANIL B KATTI

                              CRIMINAL APPEAL NO. 100130 OF 2023
                       BETWEEN:

                       MOHIDDIN S/O. DAVALSAB NEGALUR,
                       AGE. 39 YEARS, OCC. AGRICULTURE,
                       R/O. NEREGAL, HANAGAL,
                       HANGAL TALUK, HAVERI DISTRICT-581104.      ...APPELLANT

                       (BY SRI. VIDYASHANKAR G. DALWAI, ADV.)

                       AND:

          Digitally    1.   THE STATE OF KARNATAKA BY ITS P.S.I,
          signed by
          POOJA             HANGAL POLICE STATION,
POOJA     DEELIP
DEELIP    SAVANUR           REPRESENTED BY STATE PUBLIC PROSECUTOR,
SAVANUR   Date:
          2023.07.13        HIGH COURT BUILDING, DHARWAD.
          11:17:36 -
          0700

                       2.   SMT. SHARADA W/O. RAJU LAMANI,
                            AGE. 31 YEARS, OCC. COOLIE WORK,
                            R/O. GURURAYAPATTAN, HANAGAL,
                            HANGAL TALUK, DIST. HAVERI-581104.
                                                                    ...RESPONDENTS

                       (BY SRI. PRAVEEN UPPAR, HCGP FOR R1
                           M/S. VAIBHAVI INAMDAR FOR
                           SRI RAGHAVENDRA A. PUROHIT FOR R2)

                                                   ***
                             THIS CRIMINAL APPEAL IS FILED U/SEC. 14(A)(2) OF SC/ST
                       (POA) ACT 1989 SEEKING TO SET-ASIDE ORDER DATED 16.03.2023
                       IN HANGAL P.S. CR.NO. 44/2023 PASSED BY COURT OF I ADDL.
                       DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, AT HAVERI
                       AND ALLOW APPEAL FILED U/SEC. 14(A)(2) OF SC/ST (PA) ACT,
                       1989 AND ENLARGE THE APPELLANT ON BAIL IN CRIME NO. 44/2023
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                                           CRL.A No. 100130 of 2023



OF HANGAL P.S. FOR AN OFFENCES PUNISHABLE U/S 354(C), 376,
504, 506 AND 509 OF IPC AND SECTIONS 3(1)(r), 3(1)(s),
3(1)(w)(i), 3(2)(va) OF SC/ST (P.A) AMENDMENT ACT, 2015
PENDING ON THE FILE OF COURT OF I ADDL. DISTRICT AND
SESSIONS JUDGE AND SPECIAL JUDGE, HAVERI WITH SUCH
CONDITIONS WHICH THE COURT DEEMTS FIT TO BE IMPOSED IN
THE CIRCUMSTANCES OF THE CASE.

      THIS CRIMINAL APPEAL COMING ON FOR ORDERS AND THE
SAME HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON
04.07.2023, THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

                               JUDGMENT

Appellant/accused feeling aggrieved by order passed by

the trial Court on the file of I Addl. District and Sessions Judge

and Special Judge at Haveri, in Hangal police station

Cr.No.44/2023 dated 16.03.2023 preferred this appeal.

2. Parties to the appeal are referred with their ranks as

assigned in the trial Court for the sake of convenience.

3. The factual matrix leading to the case of

prosecution can be stated in nutshell to the effect that

complainant is residing along with children at Gururayapattana

of Hanagal taluk, by doing coolie work. Complainant used to go

for coolie work along with accused and they were in contact

over phone for arranging labourers to work. About two

months' prior to the date of filing complaint, complainant was

not feeling well, at that time, accused called her to come for

work. However, complainant told that she cannot come to

CRL.A No. 100130 of 2023

work as she is not feeling well and she is going to hospital for

treatment at Haveri. Accused picked up complainant for

dropping her to the hospital at Haveri in his car. While they

were proceeding in the car, accused gave juice to her for

drinking and after consuming the same, complainant became

unconscious. Accused used complainant physically and

sexually and has taken sex videos of the complainant. When

she regained conscious, she noticed that she was near

Government Hospital, Haveri. Accused showed video of

complainant and threatened her stating that he would viral the

same through social media, if she discloses about the incident

to anybody and further abused her in filthy language. After

some days, accused again came to her house and threatened

not to give complaint otherwise he will viral the video and after

2 to 3 days prior to the date of filing complaint, accused has

uploaded video in social media. On these allegations made in

the complaint, case was registered in Hanagal police station

Cr.No.44/2023 for the offence punishable under Sections

354(C), 376, 504, 506 and 509 IPC and Sections 3(1)(r),

3(1)(s), 3 (1)(w)(i), 3(2)(va) of Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Amendment Act,

2015 and Section 67(A) of Information Technology Act, 2008.

CRL.A No. 100130 of 2023

4. In response to notice, learned High Court

Government Pleader for respondent No.1 and Shri Raghavendra

R. Purohit, learned counsel for respondent No.2 have appeared.

5. Learned High Court Government Pleader for

respondent No.1 has filed objections contending that there are

sufficient material evidence against accused for the offences

alleged against him. Accused has not only video-graphed the

incident and threatened the complainant of uploading the video

in social media, if she discloses about the incident to anybody,

but has also sent the same to CWs-16 and 17. The

investigation records would reveal that CWs-16 and 17 have

deleted the video received from accused and accused has also

deleted the same. However, mobile data of accused was

retrieved and found 3 images of complainant. If the accused is

released on bail, there is every possibility of threatening

complainant of giving any evidence against him. Therefore,

prayed for dismissal of the appeal.

6. Heard the arguments of both sides.

7. On careful perusal of the material evidence on

record, it would go to show that alleged sexual incident

narrated in the complaint took place about two months prior to

CRL.A No. 100130 of 2023

the date of lodging the complaint. Complainant and accused

are known to each other and were in conversation over phone

for arranging labourers to work. On hearing from complainant

about her illness and she not attending to work, as she is

required to go to Government Hospital, Haveri, for treatment,

accused picked up complainant in his car from the place of her

residence to drop complainant to hospital at Haveri. During

travel, accused gave juice to complainant and on consuming

the same, she fell unconscious. She was not knowing

thereafter where she was carried by accused. However, on

regaining conscious, she found that she was near District

Hospital, Haveri. Accused has shown his mobile containing sex

video of complainant and threatened that if she discloses about

the incident to anybody he will upload the video in social

media.

8. Learned counsel for appellant/accused has argued

that allegations made in the complaint at the most may attract

penal action in terms of Section 354 (C) IPC and Section 67 of

the Information Technology Act and the same is bailable,

maximum punishment is three years. The offence under

Section 67(A) of Information Technology Act though non-

bailable is not punishable with life imprisonment or death.

CRL.A No. 100130 of 2023

There is no material evidence prima facie to prove the offence

under Section 376 of IPC.

9. Per contra, learned High Court Government Pleader

for respondent has argued that the statement of victim under

Section 164 of Cr.P.C. and the complaint allegations with

medical evidence speaks about prima facie case for the offence

under Section 376 IPC also. The conduct of accused is required

to be taken note of, since he has not only video-graphed the

incident of sex, but has executed threat of sharing video-graph

to CWs-16 and 17. Accused has misused the helpless situation

of victim/complainant and committed sexual assault.

10. Learned counsel representing respondent

No.2/complainant relied on the judgment of Hon'ble Apex Court

in PRASANTA KUMAR SARKAR VS. ASHIS CHATTERJEE

AND ANOTHER (AIR 2011 SC 274) wherein the guidelines

have been laid down while considering an application for bail as

under:

"i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence,

ii) nature and gravity of the accusation,

CRL.A No. 100130 of 2023

iii) severity of the punishment in the event of conviction,

iv) danger of the accused absconding or fleeing, if released on bail,

v) character, behaviour, means, position and standing of the accused,

vi) likelihood of the offence being repeated,

vii) reasonable apprehension of the witnesses being influenced and

viii) danger, of course, of justice being thwarted by grant of bail."

If the bail is granted without adverting to the relevant

considerations mechanically then the said order would suffer

from the vice of non-application of mind, rendering it to be

illegal.

11. In the present case, the investigation is completed

and charge-sheet has been filed. The charge-sheet material

would go to show that accused has video-graphed the incident

of sexual assault in Tara Plaza Hotel and Lodging at Haveri.

The statement of CW-24 Rahul Subhash Haverikar would go to

show that on 01.01.2023 accused came along with a lady and

stated that she is his wife, since they have no bus to go back to

their village, wants to stay in the room at lodge. Accused and

CRL.A No. 100130 of 2023

the said lady occupied room No.138 of the said lodge and on

the next day morning, they have vacated the room. There is

prima facie evidence to show that accused and complainant

stayed in room No.138 of Tara Plaza Hotel on 01.01.2023 and

on the next day, they vacated the room evidenced from the

statement of CW-24.

12. Accused is alleged to have video-graphed the sexual

assault in room No.138 of the said lodge and threatened

complainant of uploading the same in social media, if she

discloses about the incident. The charge-sheet material would

also go to show that accused has circulated sex video of

complainant to CWs-16 and 17. It is true that accused and

both CWs-16 and 17 have deleted the images/videos from their

mobile. However, all the 3 mobiles belonging to accused,

CWs-16 and 17 were subjected to data extraction. In the data

extraction of mobile belonging to CWs-16 and 17 no any videos

and photographs were found. However, the extraction of data

from the mobile of accused 3 images of victim/complainant

were found. Therefore, there is sufficient prima facie material

evidence to show that accused has video-graphed sexual

assault and circulated the same to CWs-16 and 17 or atleast

the data is available in the mobile of accused. The medico legal

CRL.A No. 100130 of 2023

examination report of sexual violence would go to show that no

any external injuries were found on victim/complainant and

hymen was absent. The opinion is recorded as 'victim is used

to the act like that of sexual act'. The complaint allegations

would go to show that victim is a married women and living

with her 4 children by doing coolie work. It is pertinent to note

that the victim was examined after two months of the incident

and 15 days for the second time prior to examination of

complainant. The complainant/victim has also given statement

under Section 164 before the Magistrate to show that since for

the last 7 years, her husband is not living with complainant and

by doing coolie work she is living with her children.

Victim/complainant has stated before the Magistrate about

threatening of uploading the sexual assault incident through

social media and also in her absence, accused trespassed into

the house of victim/complainant and has taken away cash of

Rs.10,000/-, ear studs of children, chain, pass book, ration

card, gas card and 2 postal pass books. Looking to the above

referred material evidence on record, at this stage, it cannot be

said that there is no any evidence against the accused under

Section 376 of IPC. Complaint allegations, victim's statement

under Section 164 of Cr.PC., retrieving of mobile data

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CRL.A No. 100130 of 2023

belonging to the accused containing the sexual assault incident

and the above referred conduct of accused in threatening

complainant to upload the sexual assault video through social

media and executed by circulating the same to CWs-16 and 17

disentitles the accused to seek bail at least till the evidence of

victim and material witnesses is being recorded. Consequently,

proceed to pass the following:

ORDER

Appeal filed by accused is hereby dismissed.

The order of trial Court on the file of I Addl. District and

Sessions Judge and Special Judge, Haveri, in Hanagal police

station Cr.No.44/2023 dated 16.03.2023 is confirmed.

If the accused seeks to move fresh bail application after

recording of evidence of material witnesses, then trial Court is

directed to dispose of the same in accordance with law.

The registry is directed to transmit the records with the

copy of this judgment to trial Court.

(Sd/-) JUDGE Jm/-