Karnataka High Court

Yallappa vs The State Of Karnataka And Anr on 16 May, 2024

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                                                       NC: 2024:KHC-K:3285
                                                       CRL.P No. 201613 of 2023




                                IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                              DATED THIS THE 16TH DAY OF MAY, 2024

                                              BEFORE
                              THE HON'BLE MR. JUSTICE RAJESH RAI K


                           CRIMINAL PETITION NO.201613 OF 2023 (439)
                      BETWEEN:

                      YALLAPPA S/O TIRUMAL HUVINAHALLI,
                      AGE: 22 YEARS, OCC: COOLIE,
                      R/O GOVINDA HOODA, TQ. SEDAM,
                      DIST. KALABURAGI-585222.

                                                                  ...PETITIONER
                      (BY SRI BASAVALING NASI, ADVOCATE)

                      AND:

                      1.   THE STATE OF KARNATAKA
                           THROUGH POLICE MUDHOL POLICE STATION,
Digitally signed by
                           CHINCHOLI SUB-DIVISION,
KHAJAAMEEN L               DISTRICT KALABURAGI,
MALAGHAN                   REPRESENTED BY ADDL. SPP,
Location: HIGH
COURT OF                   HIGH COURT OF KARNATAKA,
KARNATAKA                  KALABURAGI BENCH-585103.

                      2.   SRI BABU HONGUNTI,
                           AGE: 46 YEARS,
                           R/O BORING HUDA, TQ. SEDAM,
                           DIST. KALABURAGI-585222.

                                                                ...RESPONDENTS

                      (BY SRI RAJKUMAR A. KORWAR, HCGP FOR R1;
                       R2 SERVED)
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                                    NC: 2024:KHC-K:3285
                                    CRL.P No. 201613 of 2023




     THIS CRL.P. IS FILED U/S. 439 OF CR.P.C PRAYING TO
ALLOW THIS PETITION ENLARGE THE PETITIONER ON
REGULAR BAIL IN CRIME NO.116/2023 REGISTERED AT
MUDHOL POLICE STATION, DIST. KALABURAGI FOR THE
OFFENCES U/SECS. 323, 354(D), 376, 504, 506, 109 R/W 34
OF IPC AND SEC. 4, 6, 8 AND 12, 17, 18 OF POCSO ACT,
PENDING ON THE FILE OF ADDITIONAL DISTRICT AND
SESSION JUDGE AND FTSC-I (POCSO) AT KALABURAGI.

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

                            ORDER

The petitioner/accused No.1 has filed this petition under

Section 439 of Code of Criminal Procedure seeking regular bail

in connection with Crime No.116/2023 dated 12.08.2023

registered by the Mudhol Police Station for the offences

punishable under Sections 323, 354(D), 376, 504, 506, 109

read with Section 34 of IPC and Sections 4, 6, 8, 12, 17 and 18

of Protection of Children from Sexual Offences Act, 2012.

2. The factual matrix of the prosecution case are that,

the victim was studying in I PUC at Government College,

Sedam, for the last two years the petitioner/accused is belongs

to same village, used to follow the victim and tried to contact

with her when she was going to school. Thereafter, the victim

got admitted in the college at Sedam, even at Sedam the

petitioner/accused used to follow her and tried to contact with

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her. The petitioner also expressed his desire to marry her, at

that time, the victim refused the same for the reason that she

was a minor. Later she intimated the same to her family

members and her family members were advised the

petitioner/accused not to indulge any such activities. When

such being the case, on 08.08.2023 at about 2.30 p.m. after

completion of college, when the victim was coming to bus stand

the petitioner/accused came to the bus stand and insisted her

to join with him. Accordingly, petitioner/accused took her to the

lodge and kept her in a room and committed sexual intercourse

on her forcibly, and later abused her in filthy language and

gave a life threat that if she disclosed the incident he will finish

her and he will disrepute her dignity. As such, she kept quite

and on 10.08.2023 she took eight tablets. On account of which

she become unconscious and admitted into hospital and

thereafter she revealed the act of accused to her parents and

later lodged the complaint against the petitioner/accused which

registered in Crime No.116/2023. The petitioner/accused was

arrested on 14.08.2023 and produced before the jurisdictional

Magistrate and remanded to judicial custody. Hence, the

petitioner/accused approached the Addl. Dist. & Sessions Judge

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and FTSC-I (POCSO), Kalaburagi in Crl.Misc. No.1545/2023 for

grant of bail and the said bail application came to be dismissed

vide order dated 08.09.2023. Aggrieved by the same, the

petitioner is before this court.

3. Heard Sri Basavaling Nasi, the learned counsel for

the petitioner/accused and Sri Rajkumar A. Korwar, the learned

High Court Government Pleader for respondent-State.

4. I have perused the materials available on record

before this court.

5. It is the primary contention of the learned counsel

for the petitioner/accused that as per the prosecution the age

of the victim is stated to be 17 years, 2 months 21 days and

admittedly, there is a love affair between the petitioner/

accused and the victim girl. The victim herself joined the

company of petitioner/accused and they both stayed in a lodge.

According to the learned counsel for the petitioner/accused, to

prove the age of the victim the prosecution has relied the

school certificate without producing any such birth certificate or

the matriculation certificate or any such authenticated

document issued by the concerned department or

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dentist/doctors as held by the Hon'ble Apex Court and catena

of judgments of this Court. As such, the prosecution has failed

to prove the age of the victim that she was minor at the time of

the alleged incident. Hence, the offence under the provisions of

POCSO Act does not attract against the petitioner. Accordingly,

he prays to allow the petition.

6. Per contra, learned High Court Government Pleader

vehemently opposed the bail petition on the ground that the

material placed on record clearly make outs a prima facie case

against the petitioner/accused for the offence punishable under

the POCSO Act. The 164 statement of the victim clearly shows

that the act committed by the petitioner/accused is against her

will and without her consent. Since, she being a minor the

provisions of POCSO Act attracts against the

petitioner/accused. Accordingly, prays to dismiss the bail

petition.

7. Having heard the counsel for the petitioner/accused

so also the learned High Court Government Pleader for

respondent No.1/State, on careful perusal of the compliant and

other charge-sheet materials, the prosecution relied on the

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certificate issued by the school authority to prove the age of

the victim that she was a minor at the time of incident.

However, the prosecution failed to produce any such birth

certificate or matriculation certification of the victim girl to

prove her age. Moreover, as rightly contended by the counsel

for the petitioner/accused that there was a love affair between

the petitioner/accused and the victim girl and they both went

together and stayed in a lodge and there is also an inordinate

delay in lodging the complaint. Having regard to the facts and

circumstances of the case, without expressing any opinion on

the merits of the case, since the investigation completed and

charge-sheet has been filed, I am of the considered view that

the accused/petitioner may be admitted on bail. Hence, the

following:

ORDER

The petition filed under Section 439 of Cr.P.C. is allowed.

Consequently, the petitioner shall be released on bail in

connection with Crime No.116/2023 of Mudhol P.S., Sedam

pending on the file of Addl. District and Sessions Judge and

FTSC-I (POCSO), Kalaburagi for the offences punishable under

Sections 323, 354(D), 376, 504, 506, 109 read with Section 34

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of IPC and Sections 4, 6, 8, 12, 17 and 18 of POCSO Act, on

the following conditions:

i) The petitioner/accused shall execute his personal bond for a sum of `1,00,000/- (Rupees One Lakh Only) with two sureties for the likesum to the satisfaction of the jurisdictional Magistrate Court.