Karnataka High Court

Shankar vs The State Of Karnataka And Anr on 3 January, 2024

Author: Rajendra Badamikar

Bench: Rajendra Badamikar

                                                  -1-
                                                           NC: 2024:KHC-K:63
                                                        CRL.A No.200345 of 2023




                                  IN THE HIGH COURT OF KARNATAKA

                                         KALABURAGI BENCH

                              DATED THIS THE 3RD DAY OF JANUARY, 2024

                                               BEFORE

                           THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

                           CRIMINAL APPEAL NO.200345 OF 2023 (U/S 14 (A))

                      BETWEEN:

                      SHANKAR S/O BABAN BIRADAR,
                      AGE: 23 YEARS, OCC: AGRICULTURE,
                      R/O MIRKHAL VILLAGE, TQ: BASVAKALYAN,
                      DIST: BIDAR-585401.

                                                                     ...APPELLANT
                      (BY SRI SANJAY A. PATIL, ADVOCATE)

                      AND:

                      1.    THE STATE OF KARNATAKA THROUGH
                            POLICE HULSOOR POLICE STATION,
                            CIRCLE BAVAKALYAN, DIST: BIDAR-585401.
Digitally signed by         REPRESENTED BY ADDL. SPP,
SHILPA R                    HIGH COURT OF KARNATAKA,
TENIHALLI
                            KALABURAGI BENCH-585103.
Location: HIGH
COURT OF
KARNATAKA             2.    SMT.MANGALABAI W/O TATERAO PUNDE,
                            AGE: 55 YEARS, OCC: COOLIE WORK,
                            R/O MIRKHAL VILLAGE, TQ: BASAVAKALYAN,
                            DIST: BIDAR-585401.
                            (SINCE COMPLAINANT/VICTIM IS MINOR
                            HER MOTHER, THE NATURAL GUARDIAN IS
                            MADE AS RESPONDENT NO.2)

                                                                ...RESPONDENTS
                      (BY SMT. ANITA M. REDDY, HCGP FOR R1;
                       SRI B.C. JAKA, ADVOCATE FOR R2)
                              -2-
                                      NC: 2024:KHC-K:63
                                   CRL.A No.200345 of 2023




     THIS CRL.A IS FILED U/SEC. 14(A) OF PREVENTION OF
ATROCITIES OF SC/ST (AMENDMENT) ACT 2015, PRAYING TO
SET ASIDE THE ORDER DATED 28.11.2023 PASSED IN
CRL.MISC.NO.5268/2023 ON THE FILE OF II ADDITIONAL
DISTRICT AND SESSIONS COURT, BIDAR SITTING AT
BASAVAKALYAN AND THEREBY ENLARGE THE APPELLANT ON
BAIL IN SPECIAL CASE NO.5041/2023 ON THE FILE OF
II ADDITIONAL DISTRICT AND SESSIONS COURT, BIDAR
SITTING AT BASAVAKALYAN CHARGE SHEETED FOR THE
OFFENCES PUNISHABLE U/SEC. 376(2)(I)(N) OF IPC, SEC.4
AND 6 OF POCSO ACT, AND SEC. 3(1)(W), 3(2)(V) OF
PREVENTION OF ATROCITIES OF SC/ST (AMENDMENT) ACT,
2015 REGISTERED ARISING OUT OF CRIME NO.67/2023
REGISTERED BY HULSOOR POLICE STATION, DIST: BIDAR.

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


                         JUDGMENT

This appeal is filed under Section 14(A) of the

Prevention of Atrocities of SC/ST (Amendment) Act, 2015

challenging the order passed by the II Additional District

and Sessions Judge, Bidar sitting at Basavakalyan in

Criminal Miscellaneous No.5268/2023 dated 28.11.2023,

whereby the learned Sessions Judge has rejected the bail

petition filed by the appellant under Section 439 of Cr.P.C.

2. The brief factual matrix leading to the case are

that

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On 25.07.2023 at 16-00 hours, a complaint was

lodged by the victim claiming that she is aged about 17

years and studied up to 10th standard at Mirkhal village. It

is alleged that in May 2023 at about 01-30 p.m. when she

was proceeding towards her house from school, an

unknown person came there and forcibly put cloth in her

mouth and thereafter, he committed sexual assault on

her. On the basis of this complaint, crime was registered

for the offences under Section 376 of IPC and Sections 4

and 6 of the POCSO Act initially. Subsequently, her 161

Cr.P.C. statement was recorded, wherein she implicated

the present appellant as accused No.1 and the juvenile

offender alleging that she had love affair with the

appellant and they had physical relationship all along and

that was witnessed by juvenile offender and by

blackmailing her, he has also committed sexual assault on

her. It is further alleged that later on the appellant has

given her pills for abortion and when she started bleeding,

she was admitted to the hospital, wherein it is revealed

that she was pregnant. On the basis of this further

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statement, the present appellant was arrested on

04.08.2023 and was remanded to the custody. He has

approached the learned Sessions Judge in Criminal

Miscellaneous No.5268/2023 and the learned Sessions

Judge by impugned order dismissed the petition by

rejecting the bail. This order is being assailed in this

appeal.

3. Heard learned counsel for the appellant and

learned High Court Government Pleader for respondent

No.1 and learned counsel for respondent No.2. Perused

the records.

4. The learned counsel for the appellant would

contend that though the appellant is the neighbour of the

victim girl, initially when the complaint was lodged, his

name was not disclosed and subsequently, further

statement recorded two days later on, she has implicated

the present appellant and juvenile offender making

allegations of love affair and providing the pills. He would

further assert that in her 164 Cr.P.C. statement recorded

NC: 2024:KHC-K:63

by the Magistrate, she did not implicate the juvenile

offender and she was shown to be aged about 17 years

and considering the fact that she is near to major, it

amounts to consensual sex and hence, he would contend

that the appellant may be enlarged on bail, as the

investigation is completed and charge-sheet is already laid

down. The appellant undertakes to abide by the terms

and conditions to be imposed by this Court.

5. Per contra, learned High Court Government

Pleader would seriously oppose the bail petition

contending that the appellant has committed sexual

assault on the minor victim girl and also administered the

pills to get her aborted. She would further contend that

considering the seriousness of the offence, the appellant is

not entitled for bail. Hence, she seeks for rejection of the

bail.

6. Per contra, learned counsel for respondent No.2

would support the order passed by the learned Sessions

Judge.

NC: 2024:KHC-K:63

7. Having heard the arguments and perusing the

records, it is evident that a complaint was lodged on

25.07.2023 by setting the law in motion. On perusal of

the complaint, it is asserted that the offence was said to

have taken place in May, 2023 and that too a complaint

was directed against an unknown person. However, in 161

Cr.P.C. statement recorded on 28.07.2023, she has

implicated the present appellant as well as the juvenile

offender. Her 164 Cr.P.C. statement was also recorded,

wherein she has not at all made any allegations against

the present appellant, but admitted that she had physical

relationship with the appellant, but as regards juvenile

offender, no allegations were made in her 164 Cr.P.C.

statement. This clearly discloses that the victim girl went

on changing her stances from time to time and she did not

stick on to a particular stand.

8. There is no serious dispute about the fact that

the victim girl belongs to SC/ST community. Hence,

provisions of SC/ST have been incorporated. The age of

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the victim in the complaint shown as 17 years, but in 164

Cr.P.C. statement, her age is shown as 16 years. The

allegations of the prosecution disclose that she was

attending the school and the incident did occur while she

was returning form the school. In that event, document of

her birth records are available in the school, but the

investigating officer has not made any efforts to secure

her birth extract to ascertain her exact age. Even if the

age is taken as 16 years or 17 years and in the absence of

any specific document regarding the age of the victim,

plus or minus 3 years is required to be added and in that

event, she becomes major girl and her own allegations

disclose that it is a consensual sex. Considering this fact

and considering the fact that the victim went on changing

her stances from time to time, in my considered opinion,

the appellant is entitled for bail, as the investigation is

concluded and charge-sheet has already been laid down

since the presence of the appellant is no more required by

the Investigating Officer. Under such circumstances, the

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appeal needs to be allowed and accordingly, I proceed to

pass the following:

ORDER

The appeal is allowed.

The impugned order passed by the II Additional

District and Sessions Judge, Bidar sitting at Basavakalyan

in Criminal Miscellaneous No.5268/2023 dated 28.11.2023

is set aside. The Criminal Miscellaneous No.5268/2023

stands allowed.

The appellant/Accused No.1 is ordered to be

enlarged on bail in Crime No.67/2023 of Hulsoor Police

Station, Bidar District, registered for the offences

punishable under Section 376(2) (i) (N) of IPC and

Sections 4 and 6 of the POCSO Act and Section 3(1) (w),

3(2) (v) of the Prevention of Atrocities of SC/ST

(Amendment) Act, 2015 on his executing a personal bond

for a sum of Rs.1,00,000/- with one surety for the like-

NC: 2024:KHC-K:63

sum to the satisfaction of the Trial Court, subject to the

following conditions:-

i) The appellant shall not directly or indirectly threaten or tamper with the prosecution;

ii) The appellant shall appear before the Trial Court regularly on all hearing dates without fail, unless his presence is exempted for any valid reasons.