Karnataka High Court

Dinesha N M @ Dinesh vs State Of Karnataka on 6 June, 2025

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                                                              NC: 2025:KHC:19220
                                                          CRL.A No.1070 of 2025


                    HC-KAR



                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 6TH DAY OF JUNE, 2025

                                              BEFORE
                                THE HON'BLE MRS JUSTICE M G UMA

                        CRIMINAL APPEAL NO.1070 OF 2025 (U/S 14(A) (2))

                   BETWEEN:
                   DINESHA N.M @ DINESH,
                   S/O MAHADEVAPPA @ DISH MAHADEVA
                   AGED ABOUT 28 YEARS,
                   R/AT: NADABHOGANAHALLI VILLAGE,
                   SHEELANEREHOBLI, K R PET TQ,
                   MANDYA DISTRICT, KARNATAKA - 571 426
                                                                     ...APPELLANT
                   (BY SRI. PUNEETH B.S., ADVOCATE)

                   AND:
                   1.   STATE OF KARNATAKA
                        BY K R PET RURAL P.S.
                        REP., BY SPP,
                        HIGH COURT OF KARNATAKA
                        BANGALORE - 560 001

Digitally signed   2.   PREMA,
by SWAPNA V
                        W/O REVANNA,
Location: High
Court of                AGED ABOUT 35 YEARS,
Karnataka               R/AT: NADABHOGANAHALLI VILLAGE,
                        SHEELANEREHOBLI, K R PET TQ,
                        MANDYA DISTRICT, KARNATAKA - 571 426
                                                                   ...RESPONDENTS
                   (BY SMT. RASHMI JADHAV, ADDL. SPP FOR R1
                        SRI. CLIFTON D'ROZARIO, ADVOCATE FOR R2)

                          THIS CRL.A. IS FILED U/S.14(A)(2) OF SC/ST (POA) ACT,
                   2015 PRAYING TO SET ASIDE THE ORDER PASSED BY THE HONBLE
                   ADDL. SESSIONS JUDGE, FTSC II MANDYA IN SPL.C.NO.9/2025
                   (CRIMENO.235/2024) DATED 24.04.2025 AND GRANT THE REGULAR
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                                               NC: 2025:KHC:19220
                                           CRL.A No.1070 of 2025


HC-KAR



BAIL IN SPL.C.NO.9/2025 (CRIME NO.235/2024) BY K.R.PET RURAL
POLICE FOR THE OFFENCE P/U/S 149, 376(2)(N), 376DA, 376(3) OF
IPC AND SEC.10, 4, 6, 5(G), 5(K), 5(L) OF POCSO ACT 2012 ALSO
U/S.3(1)(W), 3(2)(V) OF SC/ST (POA) AMENDMENT ACT 2015
WHICH IS PENDING ON THE FILE OF THE HONBLE ADDL. SESSIONS
JUDGE, FTSC II MANDYA.

     THIS CRL.A., COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:      HON'BLE MRS JUSTICE M G UMA

                        ORAL JUDGMENT

The appellant - accused No.3 is before this Court seeking

grant of bail under Section 14A(2) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989

(hereinafter referred to as 'the SC/ST Act' for short) in Crime

No.23/2025 of K.R.Pet Rural Police Station, pending before the

learned Additional Sessions Judge-FTSC-II, Mandya in

Spl.Case.No.09/2025 registered for the offences punishable

under Sections 149, 376(2)(n), 376DA, 376(3) of Indian Penal

Code (for short 'IPC'), Sections 10, 4, 6, 5(G), 5(K), 5(L) of

Protection of Children from Sexual Offences Act, 2012 (for

short, 'POCSO Act') and Sections 3(1)(W), 3(2)(v) of SC/ST

(POA) Amendment Act, 2015, on the basis of the first

information lodged by informant-Prema.

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2. Heard Sri. Puneeth.B.S, learned Counsel for the

appellant, Smt. Rashmi Jadhav, learned Additional SPP for

respondent No.1 and Sri. Clifton D'Rozario, learned counsel for

respondent No.2. Perused the materials on record.

3. In view of the rival contentions urged by the

learned counsel for both the parties, the point that would arise

for my consideration is:

"Whether the appellant is entitled for grant of bail under Section 14A(2) of SC/ST (Prevention of Atrocities) Act, 1989?"

My answer to the above point is in 'Negative' for the

following:

REASONS

4. It is contented by the learned counsel for the

appellant that the appellant being accused No.3 was

apprehended on 13.12.2024 and since then, he is in judicial

custody. It is his contention that, FIR was registered against

accused Nos. 1 to 5 and the charge sheet is also filed against

them for the above said offences. However, accused Nos. 1, 4

and 5 are already enlarged on bail. When similar allegations are

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made against all the five accused, the appellant is also entitled

for bail on principles of parity.

5. Per contra, it is the contention of the learned

counsel for respondent No.2 that, gruesome act was committed

by the appellant along with the co-accused on the minor girl

aged 14 years, who is from very poor background.

6. The materials on record disclose that the offence

alleged was committed by the appellant and the co-accused

from 01.05.2024 till 30.06.2024. Only when the victim girl

became pregnant, her mother got suspicious and took her

daughter to the hospital, where it is found that she is pregnant.

Later on the basis of the first information, the FIR came to be

registered for the above said offences against the accused.

7. It is pertinent to note that the informant - mother

of the victim, referred to the name of the appellant and the co-

accused even while filing the first information. It is also

pertinent to note that the statement of the victim girl under

Section 183 of BNSS was recorded by the learned Magistrate,

where the victim girl specifically refers to the name of the

appellant and explains the incident which had occurred.

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8. Prima facie, it appears that the appellant has taken

advantage of the innocence and helpless condition of the victim

girl, as explained in the charge sheet that the victim is slightly

mentally retarded. But in the statement recorded by the

learned Magistrate, the victim was able to refer to the appellant

and the co-accused, and narrate the offence committed by

them against her wishes, that too repeatedly. Therefore, the

allegations against the appellant and the co-accused are very

serious that they have committed gang rape repeatedly on the

young girl aged 14 years. The charge sheet has been filed by

the Investigating Officer referring to the evidence of several

witnesses including CW-4-Nagaraju, who stated that he had

seen the appellant taking the victim girl with him about 5 or 6

months earlier and that he had warned him in that regard.

9. The materials collected by the Investigating Officer

while filing the charge sheet, prima facie disclose the

commission of the serious offence against the appellant as

alleged, apart from the statement of the victim recorded by the

learning Magistrate, immediately after registration of the FIR.

10. My attention was drawn by the learned counsel for

respondent No.2 to Section 29 of POCSO Act, which raises

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presumption regarding commission of offence under Sections 3,

5, 7 and 9 of the Act, unless contrary is proved. A reference is

to be made to Section 8 of the SC/ST Act which refers to the

personal knowledge of the accused, regarding the victim and

her family, which give rise to a presumption that he was aware

of her caste, unless the contrary is proved.

11. It is contended by the learned counsel for the

appellant that as per DNA report the sample collected from the

appellant does not match with the samples of the fetus, and it

is proved that he is not the biological father and that was the

reason why the co-accused were enlarged on bail. But the fact

remains that the allegation against the appellant and the co-

accused is of committing gang rape over a period of time,

taking advantage of helpless condition of the victim girl and her

family members.

12. As per the medical record, produced by learned

counsel for respondent No.2, for perusal of the Court issued by

Mandya Institute of Medical Sciences and Teaching Hospital,

Mandya, the victim was examined on 11.11.2024 and she was

found to be 21 weeks pregnant. Admittedly her pregnancy was

aborted after collecting the samples. Merely because, as per

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the DNA report, the appellant is not the biological father of the

fetus, it cannot be concluded that the accused has not

committed the offence. At this stage, the statement of the

victim recorded by the learned Magistrate cannot be ignored,

where there is reference to the appellant and commission of the

offence by him repeatedly on several occasions.

13. Learned counsel for respondent No.2 has placed

reliance on the decision of the Hon'ble High Court of Bombay in

Vaibhav Bhanudas Ubale v/s State of Maharashtra1,

where the Court has expressed its opinion at paragraph No.7 to

state that, when the allegation against the accused is serious

one of committing gang rape and taking advantage of the

situation of a poor helpless victim girl, the mere fact that DNA

report does not support the paternity is not a ground to release

the applicant on bail.

14. Regarding the contention taken by the learned

counsel for the appellant that accused Nos. 1, 4 and 5 are

already enlarged on bail and therefore, the appellant is also

entitled for the benefit of parity to release on bail. Learned

counsel for respondent No.2 has placed reliance on the decision

2020 SCC Online Bom 835

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of the co-ordinate Bench of this Court in Almas Pasha v/s

State of Karnataka2, wherein the co-ordinate Bench held in

paragraph No.10 that plea of parity as projected is not binding,

as individual offences and individual overt acts are to be

assessed and not to simply follow orders of other accused who

are enlarged on bail. The co-ordinate Bench also referred to the

decision of the Hon'ble Apex Court in Neeru Yadav v/s State

of Uttar Pradesh3, which elucidated the doctrine of parity

while enlarging the accused on bail and thus, concluded in

paragraph No.11 as under:-

" 11. Therefore, merely because other accused are enlarged on bail, the petitioner would not get a right to get himself enlarged on bail. The submission that the petitioner/accused No.2 and accused No.5 are similarly placed is unacceptable as individual overt act by the petitioner has a chilling effect on any petitioner considered for enlargement on bail. A persuasive parity would not mean that the petitioner would also be enlarged on bail."

15. Learned counsel for respondent No.2 further

submitted that the statement of the victim girl recorded by the

2023 SCC Online Kar 166

(2016) 15 SCC 422

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learned Magistrate under Section 183 of BNSS was never

brought to the notice of the co-ordinate Bench of this Court

when accused No.1 was enlarged on bail. On going through the

order passed by the co-ordinate Bench enlarging accused No.1

on bail, I find considerable force in the contention taken by the

learned counsel for respondent No.2 as there is no reference to