Karnataka High Court
Sameer S/O Mohammad Jalal vs State Of Karnataka on 29 June, 2022
Author: K. Natarajan
Bench: K. Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29th DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
CRIMINAL PETITION NO.101720/2022
BETWEEN:
SAMEER S/O MOHAMMAD JALAL
AGE. 23 YEARS, OCC. COOLIE,
R/O. TELASANG, TQ. ATHANI
DIST. BELAGAVI 416104
.. PETITIONER
(BY SRI. M.B GUNDAWADE, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, AT DHARWAD
THROUGH AIGALI POLICE STATION 580011
2 . LAXMAN S/O MAHADEV MUDALAGI
AGE. 45 YEARS, OCC. TIPPER DRIVER,
R/O. TELASANG, TQ. ATHANI
DIST. BELAGAVI 416104
.. RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP.)
THIS CRIMINAL PETITION IS FILED U/SEC. 439 OF CR.P.C.
SEEKING TO ENLARGE THE PETITIONER ON BAIL IN AIGALI
P.S.CR.NO.185/2021, ON THE FILE OF ADDITIONAL DISTRICT AND
SESSIONS JUDGE, FTSC-1, BELAGAVI, FOR THE ALLEGED OFFENCES
2
U/SEC. 376(2)(n), 506 OF IPC AND U/SEC. 4 AND 6 OF POCSO ACT, 2012
AND U/SEC. 67 AND 67(b) OF IT ACT, 2000.
THIS PETITION COMING ON FOR ORDERS THROUGH PHYSICAL
HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This petition is filed by the petitioner/accused under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for brevity) for granting bail in Crime No.85/2021 registered by the Aigali Police Station, for the offence punishable under Sections 376(2)(n) and 506 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for brevity) and under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act', for short) and Section 67 and 67(b) of Information Technology Act, 2000.
2. Heard the arguments of the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent/State.
3. The case of the prosecution is that, one Laxmana Mahadev Mudalagi-respondent No.2, has filed complaint before the 3 police on 28.12.2021 alleging that, his daughter-victim girl is aged about 17 years. That on 27.12.2021 at 7:00pm his nephew- Chetana Nagappa and relative Ravi Bhairappa came and informed that, obscene photographs of his daughter along with the accused/petitioner is posted on the WhatsApp and many people have witnessed the same. Therefore, he went to the house and asked the victim girl where she has revealed that about a year back, the accused took her to a lonely place in a sugarcane field and committed forcible rape on her and took obscene photographs. Thereafter, the accused always threatened her to come along with him or otherwise, he would web host the photographs. Thereafter, for 2 to 3 times, she had gone along with the petitioner and again, on 23.12.2021, the accused came and asked her to come along with him for sexual intercourse. When she refused, the petitioner has threatened her that he would web host the obscene photographs and later he web hosted the obscene photographs. Considering the gravity of the offence by the family members, complaint came to be lodged on 28.12.2021. The police arrested the petitioner on 31.12.2021 and remanded to judicial custody. The police investigated the matter and filed charge sheet. His bail 4 petition came to be rejected by the learned Sessions Judge. Hence, he is before this court.
4. Learned counsel for the petitioner contended that, the petitioner is innocent of the alleged offence. On looking to the compliant and the statement of the victim girl, it appears both are in love with each other for last one year. The victim went along with the accused not only at the first instance but was continuously going for last one year which shows that she is a consenting party and she has not disclosed to anybody and her age according to the medical records is 18 years and she is having worldly knowledge. Even the photographs available in the WhatsApp is not that off the porn photographs but are only the photographs of the accused and the victim girl. Investigation is completed long back. The petitioner is in custody for almost six months. He is ready to abide any condition. Hence, prayed for granting bail.
5. Per contra, learned High Court Government Pleader seriously objected the petition and contended that the accused not only committed rape on the victim girl but continuously harassed her by threatening that he would web host the porn photographs in 5 social media if she does not come. Therefore, due to fear, the victim went along with the accused and when she reused to go along with the accused, the petitioner has web hosted porn videos as well as the photos. Hence, prima facie material is placed on record to show that the accused has committed heinous offence and sexually harassed the victim girl. Hence, prayed for dismissal of the petition.
6. Having heard the learned counsel for the parties, perused the records.
7. The records reveal, admittedly, the victim has not disclosed the offence committed by the accused on her but it came to light only when the nephew and a relative of the complainant came to the complainant on 27.12.2021 and informed him what they saw in the WhatsApp. The accused web hosted the porn photographs of himself along with the victim girl and thereafter on enquiry with the victim, she has disclosed the incident and continuous sexual harassment by the accused. Statement of the victim under Section 164 Cr.P.C. was recorded wherein she has categorically stated that, in the year 2020, she came in contact with 6 the accused and then the accused forcibly took her to sugarcane field and had sexual intercourse with her and he has also taken photographs and thereafter by showing those photographs, the accused was continuously harassing to have sexual intercourse or otherwise he would web host those photographs. Accordingly, on 23.12.2021, again the accused asked her to come along him and when the victim refused, he has web hosted the porn photographs and the same was viewed by so many people. Thereafter the incident has come to the knowledge of the family members of the victim. The CDR shows that the victim and the accused are continuously talking to each other and for the first time the victim might have gone along with the accused when she was a minor below 17 years of age but after taking some obscene photographs, the accused continuously asked her to come along with him and he has sexually harassed her continuously. Thereafter, finally on 23.12.2021, when the victim refused to go along with the accused, he has web hosted the porn photographs of the accused along with the victim girl which were viewed by so many people including the relatives of the victim girl. Though the age of the victim stated in the dental examination is up to 18 years and the skeletal age was 7 17 to 18 years but the fact remains that the victim is below 18 years comes under the POCSO Act. That apart, he has web hosted the porn videos and photographs in social media and has committed offence under the Information Technology Act.
8. The consent or wiling of the victim girl is immaterial as she was below the age of 18 years and her consent cannot be considered as a valid consent and it cannot be said that she knows the consequences of her act. Therefore, considering all these aspects, I am of the view that the petitioner cannot be said to be innocent of the offence, as there are sufficient material placed on record which shows that the accused has committed sexual assault on the minor victim girl. Hence, the petitioner is not entitled for bail.
Accordingly, the criminal petition is dismissed.
Sd/-
JUDGE kmv