Vasantha Madivala vs State Of Karnataka
2023 Latest Caselaw 6680 Kant

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                                                                  NC: 2023:KHC:34280
                                                              CRL.A No. 1515 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 21ST DAY OF SEPTEMBER, 2023

                                                 BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                  CRIMINAL APPEAL No. 1515 OF 2023
                      BETWEEN:

                            VASANTHA MADIVALA
                            S/O NARAYANA MADIVALA
                            AGED ABOUT 46 YEARS
                            R/AT NUMBER 3-21A1, OTECHARU HOUSE
                            PERNE POST, BILIYOOR VILLAGE
                            BANTWAL TALUK
                            D.K DISTRICT - 574 325.
                                                                     ...APPELLANT
                      (BY SRI RAJASHEKAR S, ADVOCATE)

                      AND:

                      1.    STATE OF KARNATAKA
                            BY PUTTUR RURAL POLICE STATION
                            REP. BY STATE PUBLIC PROSECUTOR
                            HIGH COURT OF BUILDING
                            BENGALURU - 560 001.

Digitally signed by
LAKSHMINARAYANA       2.    SATHISH NAIK
MURTHY RAJASHRI             S/O KUNCHAPPA NAIK
Location: HIGH              AGED ABOUT 45 YEARS
COURT OF
KARNATAKA                   (FATHER OF VICTIM)
                            R/AT RANJADAMOOLE HOUSE
                            NIDPALLI VILLAGE AND POST
                            PUTTUR TALUK
                            D.K DISTRICT - 574 201.
                                                                    ...RESPONDENTS

                      (BY SRI RANGASWAMY R, HCGP FOR R1
                       R2-SERVED AND UNREPRESENTED)

                           THIS CRL.A IS FILED U/S 14(A)(2) OF SC/ST (POA) ACT
                      PRAYING TO SETTING ASIDE THE ORDER PASSED BY THE V
                      ADDITIONAL DISTRICT AND SESSIONS JUDGE D.K., MANGALURU
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                                                NC: 2023:KHC:34280
                                           CRL.A No. 1515 of 2023




SITTING AT PUTTUR D.K., CRL.MISC.NO.5110/2023 AND ENLARGE
THE APPELLANTS ON BAIL TO THE PETITIONER / ACCUSED IN
CONNECTION WITH SPL.CASE NO.5037/2023 PENDING BEFORE THE
HON'BLE V ADDL.DISTRICT AND SESSIONS JUDGE, MANGALURU
SITTING AT PUTTUR, D.K., IN CR.NO.38/2023 OF PUTTUR RURAL
P.S, REGISTERED FOR THE OFFENCE P/U/S 376 OF IPC AND
SECTION 5, 6 OF POCSO ACT AND SECTION 3(1)(W)(i) OF SC/ST
(POA) ACT.


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



                          JUDGMENT

1. This appeal is filed by the sole accused praying to set-

aside the order dated 14.07.2023 passed in

Crl.Misc.No.5110/2023, by the V Additional District and

Sessions Judge and Special Judge, Dakshina Kannada,

Mangaluru sitting at Puttur, whereunder the bail petition of the

appellant - accused sought in respect of Crime No.38/2023 of

Puttur Rural Police Station (Special Case No.5037/2023) for the

offence under Section 376 of Indian Penal Code, 1860 (for

short hereinafter referred to as 'IPC'), Sections 5 and 6 of the

Protection of Children from Sexual Offences Act, 2012 (for short

hereinafter referred to as 'the POCSO Act') and Sections

3(1)(w)(i) & (ii) and 3(2)(v)(va) of the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for

NC: 2023:KHC:34280 CRL.A No. 1515 of 2023

short hereinafter referred to as "the SC/ST Act"), came to be

rejected.

2. Heard learned counsel for the appellant - accused and

learned High Court Government Pleader for respondent No.1 -

State. Inspite of service of notice, respondent No.2 remained

absent and unrepresented.

3. Case of the prosecution is that the victim girl has filed a

complaint stating that she belongs to Marati Naika Community

coming under Scheduled Tribe and her date of birth is

10.01.2007 and she came in contact with the appellant -

accused in the house warming ceremony of one Sri.Krishnappa,

the elder brother of her mother. On his request, she gave the

mobile number of her mother and he used to send her

messages and make phone calls and used to talk to her and

used to come to their house whenever there was nobody in the

house. It is further stated that on 15.03.2023 at about 2.30

pm., when the victim girl was alone in the house, the appellant

- accused came to her house and stating that he wants to talk

to her, took her near a stone quarry and at about 3.00 pm., in

a shed, he forcibly removed her clothes and inspite of her

NC: 2023:KHC:34280 CRL.A No. 1515 of 2023

resistance, had forcible sexual intercourse with her and as a

result, she became pregnant. The said complaint came to be

registered in Crime No.38/2023 of Puttur Rural Police Station

for the offence under Section 376 of IPC, Sections 5 and 6 of

the POCSO Act and Section 3(1)(w)(i) of the SC/ST Act.

4. During investigation, the appellant - accused came to be

arrested on 22.04.2023 and he is in judicial custody. After

investigation, the police filed charge sheet against the appellant

- accused for the offence under Section 376 of IPC, Sections 5

and 6 of the POCSO Act and Sections 3(1)(w)(i) (ii), 3(2)(v)

and 3(2)(va) of the SC/ST Act.

5. The appellant - accused filed Crl.Misc.No.5110/2023

seeking bail and the same came to be rejected by order dated

14.07.2023, which is challenged in this appeal.

6. Learned counsel for the appellant - accused would

contend that the alleged incident had occurred on 15.03.2023

and a complaint came to be filed on 21.04.2023 and there is a

delay in filing the complaint. As the charge sheet is filed, the

appellant - accused is not required for custodial interrogation.

The statement of the victim girl has already been recorded

NC: 2023:KHC:34280 CRL.A No. 1515 of 2023

under Section 164 of Cr.P.C. The guilt of the accused has to be

established at the trial. With this, he prayed to allow the

appeal and grant bail to the appellant - accused.

7. Per contra, learned High Court Government Pleader for

respondent No.1 - State would contend that the date of birth of

the victim girl is 10.01.2007 and she belongs to Scheduled

Tribe and this appellant - accused has committed forcible

sexual intercourse on her. The doctor who examined the

victim girl has noted that her hymen is absent and she is

pregnant of 5-6 weeks and products of conception has been

taken for D.N.A analysis on 25.04.2023. The said doctor has

opined that there is a definite evidence of penetrative sexual

intercourse. The statement of the victim girl has been

recorded, wherein she has specifically stated the acts of the

appellant - accused. The charge sheet material show prima

facie case against the appellant - accused for the offences

alleged against him. With this, he prayed to dismiss the

appeal.

8. Having heard the arguments of learned counsel for the

appellant - accused and learned High Court Government

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Pleader for the respondent No.1 - State, this Court has gone

through the impugned order and the charge sheet material.

9. The date of birth of the victim girl is 10.01.2007 and she

belongs to Scheduled Tribe. The statement of the victim girl

has been recorded under Section 164 of Cr.P.C, wherein she

has specifically stated that on 15.03.2023, this appellant -

accused took her near the stone quarry to a shed and forcibly

removed her clothes and had forcible sexual intercourse with

her and she became pregnant. The doctor who examined the

victim girl has noted that her hymen is absent and she is

pregnant of 5-6 weeks and opined that there is definite

evidence of penetrative sexual intercourse. In the said report,

it is mentioned that the product of conception has been taken

on 25.04.2023 for D.N.A analysis.

10. The voluntary statement of the appellant - accused

shows that he is a married man, having wife and two children.

The D.N.A test report is awaited. Therefore, at this stage, the

appellant - accused is not entitled for grant of bail. Considering

all these aspects, the learned Sessions / Special Judge has

NC: 2023:KHC:34280 CRL.A No. 1515 of 2023

rightly rejected the bail petition of the appellant - accused. In

the result, the following;

ORDER

The appeal is dismissed. The appellant - accused is at

liberty to move the Court seeking bail, after receipt of D.N.A

test report.

Sd/-

JUDGE

GH