Karnataka High Court
Suresh S/O Dhondiram Dhumal vs The State Of Karnataka on 16 June, 2023
Bench: V.Srishananda
-1-
CRL.P No. 101209 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 101209 OF 2023
BETWEEN:
SURESH S/O. DHONDIRAM DHUMAL,
AGE: 24 YEARS, OCC: COOLIE,
R/O: PRAKASH NAGAR, SADALAGA,
TQ: CHIKKODI, DIST: BELAGAVI- 591239.
...PETITIONER
(BY SRI. B.S. KUKANAGOUDAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH SADALAGA POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
CHANDRASHEKAR
LAXMAN
DHARWAD BENCH, DHARWAD- 580011.
KATTIMANI
Digitally signed by
2. RAJMOHAMMAD S/O. ISAQ SANKESHWAR,
CHANDRASHEKAR
LAXMAN AGE: 45 YEARS, OCC: PRIVATE SERVICE,
KATTIMANI
Date: 2023.06.21 R/O: PRAKASH NAGAR, SADALAGA,
12:21:25 -0700
TQ: CHIKKODI, DIST: BELAGAVI- 591239.
...RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1;
NOTICE TO R2 IS SERVED)
THIS CRIMINAL PETITION IS FILED U/SEC. 439 OF
CR.P.C. SEEKING TO PASS AN ORDER, RELEASING THE
PETITIONER/ACCUSED NO.1 ON BAIL, IN SPL. CASE NO.
07/2023 (SADALAGA P.S IP.CRIME NO. 174/2022) FOR THE
OFFENCES P/U/SEC. 376, 366(A) OF I.P.C. AND U/SEC. 4 AND
-2-
CRL.P No. 101209 of 2023
6 OF POCSO ACT, 2012, PENDING ON THE FILE OF ADDL.
DISTRICT AND SESSIONS JUDE, FTSC-1, BELAGAVI.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.B.S.Kukanagoudar, learned counsel for the
petitioner and learned High Court Government Pleader for
respondent No.1 - State.
2. Second respondent though served with notice,
has remained absent.
3. Upon a complaint lodged by the father of the
victim girl with Sadalaga Police, Chikkodi Circle, Belagavi
District, the said police registered a case in Crime
No.174/2022 on 04.11.2022 initially for the offence
punishable under Section 363 of IPC.
4. The gist of the complaint averments reveal that
the victim girl aged about 16 years 11 months was
washing the utensils in front of her house and the accused
suspected to have eloped her on his motorcycle in the
guise of love affair. After registering the complaint, police
CRL.P No. 101209 of 2023
investigated the matter and during the course of
investigation, traced the victim girl in the company of the
accused person and recorded the statement of the victim
girl which revealed that the petitioner had sexual
intercourse with victim girl twice. Based on such
statement, police filed charge sheet against the petitioner
for the offence punishable under Sections 363, 376 of IPC
and Sections 4 and 6 of POCSO Act.
5. The attempt made by the petitioner seeking an
order of grant of bail is turned down by the learned Special
Judge, Belagavi. Thereafter, the petitioner is before this
Court.
6. Sri.B.S.Kukanagoudar, learned counsel for the
petitioner reiterating the grounds urged in the petition
contended that the petitioner and victim girl had a love
affair and in pursuance to the said love affair and in view
of the opposition of family of victim girl, the victim girl on
her volition accompanied the petitioner to his friends and
relative's house and on her volition she had the physical
CRL.P No. 101209 of 2023
relationship with the petitioner. Therefore, the petitioner
cannot be found fault with for the aforesaid charges and
sought for grant of bail.
7. Per contra, learned High Court Government
Pleader opposes the petition stating that the defence in
the nutshell is that there was consensual sexual
intercourse between the petitioner and victim girl which
cannot be countenanced in law in view of the principles of
law enunciated in the judgment of the Hon'ble Apex Court
in the case of Independent Thought vs. Union of India
and Another [(2017) 10 SCC 800].
8. Perused the material on record meticulously in
view of the rival contentions of the parties.
9. On such perusal, it is seen that initially missing
complaint came to be filed by the father of the victim girl
and police after registering the case traced the victim girl
in the company of the accused. On enquiry with the
victim girl, her statement was recorded by the
CRL.P No. 101209 of 2023
investigating officer and her statement was also recorded
before the jurisdictional Magistrate under Section 164 of
Cr.P.C. In such statement, she has categorically admitted
that she had physical relationship with the petitioner but
there was no force for such physical relationship.
10. Section 3 of the POCSO Act defines what is
sexual assault, which reads as under:
"3. - Penetrative sexual assault.- A person is
said to commit "penetrative sexual assault" if-
(a) he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or makes
the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part
of the body, not being the penis, into the vagina,
the urethra or anus of the child or makes the child
to do so with him or any other person; or
(c) he manipulates any part of the body of the child
so as to cause penetration into the vagina, urethra,
anus or any part of body of the child or makes the
child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus,
urethra of the child or makes the child to do so to
such person or any other person."
11. On careful reading of the above said provision,
it is seen that the element of force is absent. Taking note
CRL.P No. 101209 of 2023
of the fact that the victim girl is aged 16 years 11 months
and also the fact that definition of 'child' under Section
2(d) of POCSO Act, wherein any person below the age of
18 years is considered to be a child, the consent, if any, of
the victim girl to have the physical relationship with
petitioner is immaterial. The view taken by this Court is
fortified by the Hon'ble Apex Court in the case of
Independent Thought (supra).
12. Accordingly, this Court is of the considered
opinion that the grounds urged in the petition at this stage
would definitely disentitle the petitioner from obtaining an
order of grant of bail by resorting to the special powers
vested in this Court under Section 439 of Cr.P.C.
13. It is always open for the petitioner to make a
successive bail request, if there is positive changed
circumstance in his case especially after the examination
of material witness including the victim girl.
CRL.P No. 101209 of 2023
14. Reserving such liberty for the petitioner,
following order is passed:
ORDER
Criminal petition stands rejected.
Sd/-
JUDGE
SH
