Sri. Usman R S vs State By Davanagere Women Ps
2023 Latest Caselaw 6541 Kant

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                                                             NC: 2023:KHC:33470
                                                         CRL.A No. 1435 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 15TH DAY OF SEPTEMBER, 2023

                                                BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                 CRIMINAL APPEAL NO. 1435 OF 2023
                      BETWEEN:

                            SRI. USMAN R.S
                            S/O ABBAS R.S
                            AGED ABOUT 31 YEARS
                            R/O NO.824/2, OPPOSITE
                            KAALLESHWARA RICE MILL
                            BAMBOO BAZAR
                            DAVANAGERE - 577 001.
                                                                   ...APPELLANT
                      (BY SRI. M. MOHAMMED AZARUDDIN, ADVOCATE)

                      AND:

                      1.    STATE BY DAVANAGERE WOMEN PS
                            REPRESENTED BY
                            STATE PUBIC PROSECUTOR
                            HIGH COURT COMPLEX BUILDING
Digitally signed by
                            OPPOSITE VIDHANA SOUDHA
LAKSHMINARAYANA             BENGALURU - 560 001.
MURTHY RAJASHRI
Location: HIGH
COURT OF
KARNATAKA             2.    SHANTAMMA
                            W/O LATE RAMESH
                            AGED ABOUT 36 YEARS
                            R/O: 4TH MAIN, 4TH CROSS
                            YELLAMMA NAGAR
                            DAVANGERE - 577 002.
                                                                 ...RESPONDENTS
                      (BY SRI. M. DIVAKAR MADDUR, HCGP FOR R1;
                          R2 SERVED AND UNREPRESENTED)
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                                              NC: 2023:KHC:33470
                                       CRL.A No. 1435 of 2023




     THIS CRL.A. IS FILED U/S 14(A)(2) OF SC/ST (POA) ACT,
2015 PRAYING TO GRANT REGULAR BAIL TO APPELLANT /
ACCUSED NO.1 IN SPECIAL CASE NO.283/2023 ARISING OUT
OF CR.NO.27/2023 REGISTERED BY THE RESPONDENT NO.1
POLICE, NOW PENDING ON THE FILES OF ADDL. DISTRICT
AND SESSION JUDGE, FTSC-I, DAVANAGERE, FOR THE
OFFFENCE U/S 376(2)(n), 506 OF IPC, U/S 6 OF THE POCSO
ACT AND SEC. 3(1)(w), 3(2)(v-a) AND 3(2)(v) OF THE SC AND
ST ACT.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

1. This appeal is filed by the sole appellant/accused

praying to set aside the order dated 06.07.2023 passed in

the Special Case No.283/2023 by Additional District and

Sessions Judge, FTSC-1, whereunder the bail application

of the appellant/accused sought in respect of Crime

No.27/2023 of Davanagere Women Police Station in

respect of the offences punishable under Sections

376(2)(n), 506 IPC, under Section 6 of the POCSO Act and

Section 3(1)(w), 3(2)(v-a) and 3(2)(v) of the Schedule

Castes and Schedule Tribes (Prevention of Atrocities) Act

1989, came to be rejected.

2. Heard the arguments of learned counsel for the

NC: 2023:KHC:33470 CRL.A No. 1435 of 2023

appellant and learned HCGP for respondent No.1/State. In

spite of service of notice respondent No.2 has remained

absent and unrepresented.

3. The case of the prosecution is that mother of the

victim girl has filed the compliant stating that the date of

birth of her daughter victim girl is 16.11.2006 and she is

studying in I PUC and earlier they were staying near

Mattikal Basavanna Temple and at that time her husband

was acquainted with this appellant/accused and her

husband had borrowed Rs.10,000/- from him. Her

husband died on 30.08.2020 and thereafter, she shifted to

Yellamma Nagara. The appellant/accused who had given

loan for her husband used to come to her house

demanding repayment of the loan amount and at that time

she told him that she had three daughters. She further

submitted that appellant/accused used to come her house

and used to talk with the victim girl. It is further stated

that on 13.03.2023 at 5:00 pm when the complainant

returned from her work, daughter/victim girl was crying

NC: 2023:KHC:33470 CRL.A No. 1435 of 2023

and when she asked her what happened, the victim told

her that in her absence the appellant/accused since three

months threatening her, had forcible sexual intercourse, in

spite of her resistance and he threatened her not to

disclose the same to her mother or otherwise he will kill

her. The said complaint came to be registered in Crime

No.27/2023 of Women Police Station, Davangere for the

aforesaid offences. The appellant/accused came to be

arrested and he is in Judicial Custody, charge sheet came

to be filed for the aforesaid offences against this

appellant/accused and the case came to be registered in

Special Case No.283/2023. The appellant/accused filed

bail application and the same came to be rejected by

impugned order dated 06.07.2023. The appellant/accused

challenged the said order in this appeal

4. The learned counsel for the appellant would

contend that in the compliant, it is stated that since three

months the appellant/accused is having sexual intercourse

with victim girl, in the statement of the complaint recorded

NC: 2023:KHC:33470 CRL.A No. 1435 of 2023

under Section 164 of Cr.P.C she has stated that since 5 to

6 months the appellant/accused is having forcible sexual

intercourse with her daughter and in Section 164

statement, it is stated that the appellant/accused is having

sexual intercourse with her since 5-6 months. He submits

that the statement of the victim girl is contrary to the

statement of her mother. The incident occurred on

13.03.2023 and the complaint came to be filed on

15.03.2023 and there is delay in filing the complaint. The

appellant/accused has insisted the complainant to repay

the loan amount borrowed by her husband and therefore,

a false complaint is lodged against him.

5. The doctor who examined the victim girl has

opined that there is no evidence suggestive of sexual

intercourse. As the charge sheet is filed and therefore, the

appellant/accused is not required for custodial

interrogation. He prayed to allow the appeal and grant of

bail to the appellant.

6. Per contra, the learned HCGP contends that the

NC: 2023:KHC:33470 CRL.A No. 1435 of 2023

appellant/accused misusing the poor economical condition

of the victim girl and her family members and had

committed forcible sexual intercourse with the victim girl.

The doctor who examined the victim girl noted that her

hymen is not intact. The date of birth of victim girl is

16.11.2006. Considering all these aspects, the Special

Court has rightly rejected the bail application of the

appellant/accused. The applicant has not made out any

ground for setting aside the impugned order and grant of

bail. Hence, he prayed for dismissal of appeal.

7. Having heard the learned counsel for the

appellant/accused and learned HCGP for respondent No.2,

this court has gone through impugned order and charge

sheet material.

8. The date of birth of victim girl as per school

records is 16.11.2006. The victim is aged less than 17

years as on the date of alleged offence. As per averments

of the complaint and statement of the victim and her

mother is that the appellant/accused used to come to her

NC: 2023:KHC:33470 CRL.A No. 1435 of 2023

house demanding re-payment of loan amount borrowed by

father of victim girl. The statement of victim girl has been

recorded in 164 of Cr.P.C, where in she has specifically

stated that appellant/accused committed forcible sexual

intercourse with her in the absence of her mother. The

doctor, who examined the victim girl has noted that the

hymen of the victim girl is not intact. Merely because the

doctor has opined that there is no evidence suggestive of

sexual intercourse of the victim girl by the

appellant/accused cannot be taken into consideration,

since the victim girl has been examined after two days of

the incident. The charge sheet material show prima facie

case for the offences alleged against the

appellant/accused. There are no grounds for setting aside

the impugned order and grant of bail. Hence the appeal is

dismissed.

Sd/-

JUDGE

PNV,RMS

CT:SNN