Shri. Yamanurappa S/O Rajappa ... vs The State Of Karnataka
2023 Latest Caselaw 2954 Kant

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                                                      CRL.P No. 100738 of 2023




                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 7TH DAY OF JUNE, 2023

                                             BEFORE

                             THE HON'BLE MR JUSTICE V.SRISHANANDA

                              CRIMINAL PETITION NO. 100738 OF 2023

                      BETWEEN:

                      SHRI. YAMANURAPPA S/O. RAJAPPA CHANNADASR,
                      AGE: 22 YEARS, OCC: COOLIE,
                      R/O: VATAPA RAVI VILLAGE,
                      KUKANUR TALUK, KOPPAL DISTRICT - 583236
                                                              ...PETITIONER
                      (BY SRI. D.V. PATTAR, ADVOCATE)

                      AND:

                      1.   THE STATE OF KARNATAKA,
                           REPRESENTED BY ITS
                           STATE PUBLIC PROSECUTOR,
                           HIGH COURT OF KARNATAKA,
                           BENCH AT DHARWAD.
CHANDRASHEKAR
LAXMAN                     (THROUGH BEVOOR P.S.)
KATTIMANI

                      2.  SHRI. SHANKRAPPA S/O. SHIVAPPA HALLI,
Digitally signed by
CHANDRASHEKAR             AGE: 52 YEARS, OCC: AGRICULTURIST,
LAXMAN KATTIMANI
Date: 2023.06.09
                          R/O: VATAPARAVI VILLAGE,
15:16:55 -0700            KUKANUR TALUK, KOPPAL DISTRICT -583236.
                                                                ...RESPONDENTS
                      (BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1;
                          SRI. G.D. PATIL, ADVOCATE FOR R2)

                           THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C,
                      SEEKING TO ALLOW     THIS PETITION AND ENLARGE THE
                      PETITIONER/ACCUSED NO.1 ON BAIL IN SPL.SC.POCSO NO.
                      4/2023 PENDING ON THE FILE OF ADDITIONAL DISTRICT AND
                      SESSIONS JUDGE FTSC- I AT KOPPAL, IN CONNECTION WITH
                      CRIME NO. 137/2022 REGISTERED IN BEVOOR POLICE
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                                     CRL.P No. 100738 of 2023




STATION, FOR THE OFFENCES U/S 363, 376, 109, 344 R/W 34
OF IPC, AND SEC. 6 AND 17 OF POCSO ACT 2012 PENDING
TRAIL OF THE CASE, IN SO FOR AS THIS PETITIONER IS
CONCERNED.

     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:

                           ORDER

Heard Sri.D.V.Pattar, learned counsel for the

petitioner, learned High Court Government Pleader for

respondent No.1 - State and Sri.G.D.Patil, learned counsel

for respondent No.2.

2. This petition is filed under Section 439 of

Cr.P.C. with the following prayer:

"To allow this petition and enlarge the petitioner/accused No.1 on bail in SPL.SC.POCSO NO. 4/2023 pending on the file of Additional District and Sessions Judge FTSC- I at Koppal, in connection with Crime No. 137/2022 registered in Bevoor Police Station, for the offences U/s 363, 376, 109, 344 R/w 34 of IPC, and Sec. 6 and 17 of POCSO Act 2012 pending trail of the case, insofar as this petitioner is concerned."

3. Brief facts of the case are as under:

CRL.P No. 100738 of 2023

Father of the victim girl Shankrappa lodged a

complaint with Bevoor police, Koppal District on

05.11.2022 which was registered in Crime No.137/2022

initially for the offence punishable under Section 363 of

IPC.

Gist of the complaint averments reveal that the

victim girl aged 17 years was studying in II PUC and she

was staying in girls hostel. On 22.10.2022 on account of

Deepavali festival the victim girl had visited the house of

the complainant and on 02.11.2022 she left the house as

usual for the purpose of attending college but she did not

return home. Being anxious about the same, the

complainant enquired the warden of girls hostel whether

the victim girl had gone to the hostel. The warden replied

that victim girl has not taken shelter in the hostel. Being

further anxious, a search was made for the victim girl in

friends and relatives house. Nowhere the victim girl was

traced and therefore on 05.11.2022, he approached the

Bevoor police and lodged a missing complaint against

CRL.P No. 100738 of 2023

unknown persons. Police after registering the case

thoroughly investigated the matter, victim girl was traced

in the company of the petitioner in Hosur of Tamilnadu

State and they were brought back to village.

On enquiry with the victim girl, she has stated that

the petitioner herein with a promise to marry her, took her

along with him and kept her in relatives house and

subsequently he shifted her to Hosur of Tamilnadu State in

a bus and took shelter near a construction place and had

forcible physical relationship with the victim girl. Based on

such statement of the victim girl, the investigation agency

invoked Sections 4 and 6 of POCSO Act and other IPC

offences and filed charge sheet.

4. The attempt made by the petitioner who was

arrested during the investigation to seek grant of bail was

turned down by the learned Sessions Judge by order dated

24.02.2023 in Spl.SC.POCSO.No.4/2023. Thereafter, the

petitioner is before this Court.

CRL.P No. 100738 of 2023

5. Sri.D.V.Pattar, learned counsel for the

petitioner reiterating the grounds urged in the petition

contended that the incident as complained by the

complainant has not at all taken place and the victim girl

on her volition accompanied the petitioner and thereafter

they had physical relationship in view of the promise made

by the petitioner to marry her.

6. He also contended that the victim girl is aged

17 years and 4 months and therefore the physical

relationship petitioner had with victim girl cannot be

treated as a penetrative sexual assault as is contemplated

under the provisions of POCSO Act and it is a consensual

act and sought for allowing the bail petition.

7. He also contended that there was no resistance

offered by the girl in any of the places where the victim

girl and the petitioner resided which prima facie shows

that the victim girl is a willing party to have physical

relationship with petitioner and therefore the petitioner is

CRL.P No. 100738 of 2023

entitled for grant of bail more so in view of the fact that

charge sheet is filed.

8. Per contra, learned High Court Government

Pleader opposing the petition grounds contended that

admittedly the victim girl is aged 17 years as per the

complaint and even assuming that she is aged 17 years

and 4 months, her consent if any is immaterial while

appreciating the case of the prosecution especially for the

offence punishable under the provisions of POCSO Act and

sought for dismissal of the petition.

9. She further contended that the question of

statement of victim girl cannot be looked into by this Court

at this stage as she is yet to be examined before the

jurisdictional Court.

10. She also contended that in view of the

authoritative pronouncement of various judgments by the

Hon'ble Apex Court and the High Courts, consent of a

minor is not a consent in the eye of law.

CRL.P No. 100738 of 2023

11. Sri.G.D.Patil, learned counsel representing the

defacto complainant supported the argument put forth on

behalf of the prosecution and sought for rejection of bail.

12. Perused the material on record meticulously in

view of the rival contentions of the parties. On such

perusal, it is seen that the victim girl is aged 17 years as

per the complaint and as per the petitioner 17 years 4

months. As per the definition of the word 'child' under the

POCSO Act, every person who is under the age 18 years is

to be termed as a child. Therefore, the victim is to be

treated as a child. Therefore, the prosecution has rightly

invoked the provisions of POCSO Act in the incident based

on the statement of the victim girl recorded by the

investigating officer.

13. The theory put forward by the petitioner is that

the victim girl is a consent party and she had voluntarily

accompanied the petitioner to different places and she was

also a willing party for physical relationship and therefore

no offences are attracted.

CRL.P No. 100738 of 2023

14. It is settled principles of law and require no

emphasis that consent of a minor is not a consent in the

eye of law. Since the victim is a minor as per the

provisions of POCSO Act, her consent is immaterial while

appreciating the case of the prosecution. The view of this

Court in this regard is fortified in view of legal principles

enunciated in the case of Independent Thought vs.

Union of India and Another [(2017) 10 SCC 800].

15. As is rightly contended on behalf of prosecution,

the victim girl is yet to be examined before the trial Court

and her evidence will be of greater significance in

appreciating the case of the prosecution while deciding the

guilt or otherwise of the petitioner. Till such time, the

petitioner is not entitled to be enlarged on bail in the

considered opinion of this Court.

16. It is always open for the petitioner to renew his

request for grant of bail with a successive bail application,

if there is positive changed circumstance in his case.

CRL.P No. 100738 of 2023

17. Reserving such liberty for the petitioner,

following order is passed:

ORDER

Criminal petition is rejected.

Sd/-

JUDGE

SH