Karnataka High Court
Manjunatha vs State Of Karnataka By on 4 November, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL PETITION No.8529/2022
BETWEEN:
MANJUNATHA
S/O SHANKARA
AGED ABOUT 34 YEARS,
R/AT HATNA VILLAGE
DUDDA HOBLI
MANDYA 571405
...PETITIONER
(BY SRI. MRC MANOHAR, ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
SHIVALLI P. S, MANDYA DISTRICT
REP BY STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX
BANGALORE 560001
2. RUDRAPPA
AGED ABOUT 42 YEARS,
S/O BASAVARAJAPPA,
R/AT B HATNA VILLAGE
DUDDA HOBLI, MANDYA 571405
...RESPONDENTS
(BY SRI.K.NAGESHWARAPPA, HCGP FOR R-1
SRI.RAVI KIRAN, ADVOCATE FOR R-2)
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THIS CRL.PETITION IS FILED U/S 439 CR.PC PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN SPL.C.C.NO.96/2022
(CR.NO.24/2022) OF SHIVALLI P.S., MANDYA DISTRICT FOR THE
OFFENCE P/U/S 376(2)(l),376(2)(n),450,506 OF IPC AND SEC.5(L)
AND 6 OF POCOS ACT ON THE FILE OF THE ADDL.DISTRICT
AND SESSIONS JUDGE, FTSC-II,MANDYA.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner has filed this petition under Section 439 of Cr.P.C. for enlarging him on bail in Crime No.24/2022 of Shivalli Police Station, registered in Spl.C.C. No.96/2022 pending on the file of the Addl. District and Sessions Judge, FTSC-II, Mandya for the offences punishable under Section 376(2)(l), 372(2)(n), 450, 506 of IPC and Section 5(L) and 6 of POCSO Act.
2. The brief factual matrix leading to the case are that, the victim is the daughter of the complainant and they are residing in B-Hatna village. The victim is aged about 13 years and studying in 7th standard and adjoining to their house at 100 mtrs, they have put 3 up a shed wherein they are tying their cattles and everyday morning at 4.30 a.m and also in the evening, her parents used to go to the shed in order to procure milk. It is further alleged that nearby the shed, the house of the petitioner-accused is situated and on 20.04.2022 at 4.30 a.m., the complainant and his wife went to the shed and while proceeding, they just pulled the door of the house. The complainant suddenly returned to the house as he had forgot to take the pot for the milk. When he returned along with his wife to his house, he found that door was opened. He noticed that the present petitioner was attempting on his minor daughter/victim by closing her mouth and she was attempting to escape. Seeing the complainant, the petitioner fled away from the spot. The complainant did not lodge a complaint immediately as it was pertaining to his daughter and though that he would take step after discussing the matter with the elders of the village. In the 4 meanwhile on 22.04.2022 evening 5.00 p.m, the petitioner met him and when he enquired regarding the incident that had occurred two days back, the petitioner did not respond properly and then, one Kumaraswamy who was accompanying the complainant asked him to lodge a complaint. As such, complaint came to be lodged. On the basis of the complaint, crime came to be registered for the offences punishable under Section 376, 511 of IPC and under Section 8 and 12 of the POCSO Act against the petitioner.
3. Thereafter, the petitioner was arrested and was subjected to medical examination. However, the victim had refused to undergo medical examination. During the course of investigation, the victim was also produced before the learned Magistrate with a request for recording her statement under Section 164 of Cr.P.C. and same was recorded by the learned Magistrate, wherein the victim has reiterated the 5 allegations made in the complaint and further it is asserted in her 164 of CR.P.C. statement that since last 15 occasions she was being regularly sexually assaulted by the petitioner in the mornings. Thereafter, the Investigating Officer after completing the investigation has submitted a charge sheet against the accused for the offences punishable under Section 376(2)(L), 372(2)(n), 450, 506 of IPC and under the provisions of Section 5(L) and 6 of the POCSO Act.
4. The petitioner has approached the learned Sessions Judge seeking for bail and the learned Sessions Judge rejected the bail petition vide order dated 20.07.2022. Hence, the petitioner is before this Court.
5. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for 6 respondent No.1-State, as well as learned counsel for respondent No.2. Perused the records.
6. Learned counsel for the petitioner would contend that the allegations made in the complaint disclose that there is no penetrative sexual assault and the medical records also establish that no seminal stains were detected and there was no penetration and statement under Section 161 of Cr.P.C also disclose that there was only an attempt. Learned counsel would also contend that petitioner-accused in judicial custody since 29.04.2022 and the investigation is concluded and charge sheet has been submitted and there is no chance of petitioner fleeing away as he is native of same village and has permanent residence. Further all the witnesses are relatives of the complainant and question of tampering them does not arise at all. Hence, he would seek for admitting the petitioner on bail.
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7. Per contra, learned HCGP and learned counsel for respondent No.2 would seriously object the bail petition. Both the counsels invite the attention of this Court to 164 of Cr.P.C. Statement given by the victim, wherein she has made specific allegations regarding the complaint averments and also regarding continuous sexual assault made on her regularly on 15 occasions by the petitioner. Hence, they would contend that now it is necessary to consider the facts and circumstances and considering the gravity of the offence, it is not a fit case wherein discretion can be exercised. As such, they sought for rejection of the bail petition.
8. Having heard the arguments and perusing the records, it is evident that initially complaint was lodged in respect of offence of attempt of rape against the present petitioner-accused and under the provisions of POCSO Act. However, 164 of Cr.P.C. statement of the victim does establish that there was 8 a regular sexual assault on her continuously. No doubt, Section 161 statement and the statement recorded by the learned Magistrate under Section 164 of Cr.P.C, differ regarding continuous sexual assault on the victim, but they are required to be tested only during the course of trial. No doubt, the medical evidence does establish that hymen is intact and no seminal stains were detected. However, the complaint was not in respect of penetrative sexual assault but in respect of attempt of rape. The petitioner is aged 34 years and victim is aged about hardly 13 years and he attempted on a minor child. The matter is serious in nature and merely on the ground that the petitioner is in custody since 29.04.2022 is not a ground for admitting him on bail. Considering the serious allegations made against the petitioner and considering the Statement under Section 164 of Cr.P.C, given by the victim, it is not a fit case wherein discretion can be exercised in favour 9 of the petitioner. Hence, the petition is devoid of merit and does not survive for consideration.
Accordingly, the petition stands dismissed.
Sd/-
JUDGE ln