Karnataka High Court
Shri. Raghavendra S/O. Mahadev Khilare vs The State Of Karnataka on 22 September, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22 N D DAY OF SEPTEMBER 2022
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO.102499 OF 2022
BETWEEN:
SHRI RAGHAVEND RA S/O. MAHADEV
KHILARE, AGE: 32 YEARS,
OCC: AGRICULT URE, R/O. CHINCHA LI,
TQ: RAIBAG, DIST: BELA GAVI.
...PETITIONER
(BY SHRI HA RSHA VARDHAN M.PATIL, ADV OCATE)
Digitally
signed by
ROHAN
HADIMANI T AND:
Location:
ROHAN HIGH COURT
HADIMANI
T
OF
KARNATAKA 1. THE STATE OF KARNATAKA,
DHARWAD
Date:
2022.09.26 BY BELA GAVI RURAL POLI CE STATION,
15:07:15
+0530 R/BY ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF K ARNATAKA,
DHARWAD BEN CH.
2. SMT. SHOBHA W/ O. SAHAD EV KHOT,
AGE: 35 YEARS , OCC: HOUS EHOLD WORK,
R/O. CHIN CHALI , TQ: RAIBAG,
DIST: BELA GAVI-591217.
... RES PONDENTS
(BY SHRI PRASHA NTH V. MOGA LI, HCGP FOR R1;
SHRI AVINASH BA NAKAR, ADV OCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 OF CR.P.C, SEEKING TO ENLARGE THE
PETITIONER/ACCUSED ON BAIL IN CRIME NO.16/ 2022 OF
BELAGAVI RURAL POLI CE STATION REGISTERED F OR THE
OFFENCES PUNIS HABLE U/SEC.376(2) (n) , 506, 509 OF IPC
1860 AND SECTIONS 4 AND 6 OF PROTECTION OF CHILDREN
FROM SEXUAL OF FENCES ACT- 2012, PENDING IN SPL.CAS E
NO.93/ 2022 ON THE FILE OF ADDITIONAL DISTRICT AND
SESSIONS JUDGE, FTSC-1, BELA GA VI, IN THE INTEREST OF
JUSTICE AND EQUITY.
2
CRL.P No. 102499 of 2022
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, T HE COURT MADE THE F OLLOWING:
ORDER
This petition is filed by sole accused under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.', for brevity) seeking bail in Crime No.16/2022 of Belagavi Rural Police Station registered for the offences punishable under Sections 376(2) (n), 506, 509 of The Indian Penal Code, 1860 (hereinafter referred to as 'IPC', for brevity), Sections 4 and 6 of Protection of Children from Sexual Offence Act-2012 (hereinafter referred to as 'POCSO Act' for brevity), pending in Spl.Case No.93/2022 on the file of Addl. District and Sessions Judge, FTSC-I, Belagavi.
2. The case of prosecutions is that, the mother of the victim girl has filed complaint stating that her husband is no more and she is residing with her daughter-the victim girl aged 14 years 8 months 3 CRL.P No. 102499 of 2022 and son by name Pradeep and that her sister Gangavva @ Sudha is given in marriage to the petitioner-accused and that her sister is working as clerk in KSRP Belagavi and the petitioner is doing nothing and they are residing in KSRP quarters and they used to visit their house. It is further stated that in the year 2020 during the lockdown since there was holiday for schools, the complainant's daughter-victim girl in the month of March had gone to the house of petitioner-accused and stayed there for 1 ½ years and returned to the house in the month of December-2021. The complainant's daughter informed that the petitioner-accused on 15.09.2020 at 12:00 p.m, when no one was there in the house, persuaded her and had physical contact and recorded the same in mobile and by threatening her of showing the said picture to her mother had regular physical contact with her. That on 4 CRL.P No. 102499 of 2022 29.11.2021 at about 11:30 a.m, in KSRP quarters No.25 at Machhe had forcible sexual intercourse and asked her not to disclose otherwise he will not spare their lives. As such, the victim girl did not disclose the same to the complainant and others. Thereafter, on 05.02.2022, the complainant lodged the complaint against the petitioner-accused. The said complaint came to be registered in Crime No.16/2022 of Belagavi Rural Police Station for the offences punishable under Sections 376(2) (n), 506, 509 of IPC and Sections 4 and 6 of POCSO Act. The petitioner-accused came to be arrested on 06.02.2022 and he is in judicial custody. After completing investigation, the Investigating Officer has filed charge-sheet against the petitioner and case is pending in Special Case No.93/2022. The petitioner-accused filed Crl.Misc.No.1079/2022 and the same came to be rejected by the learned Addl. 5 CRL.P No. 102499 of 2022 District and Sessions Judge, FTSC-1, Belagavi by order dated 25.08.2022. Therefore, the petitioner- accused is before this Court seeking bail.
3. Heard the arguments of the learned counsel appearing for the petitioner, learned counsel appearing for respondent No.2 and learned High Court Government Pleader for respondent No.1- State.
4. It would be the contention of the learned counsel for the petitioner that, the alleged incident had occurred on 15.09.2020 and the complaint came to be filed on 05.02.2022 and there is a delay in filing the complaint and it is not properly explained. The victim girl has not made any complaint either to her aunt or to her mother since September-2020. The alleged incident occurred in KSRP quarters, which are surrounded by other quarters. There is no 6 CRL.P No. 102499 of 2022 hue and cry by the victim girl. The victim girl comes back to her mother's house during December-2021 and intimates her mother regarding the alleged incident. But, even thereafter also there is a delay in filing the complaint and it is filed on 05.02.2022. The doctor, who examined the victim girl, has opined that her skeletal age is between 18 to 20 years and dental age is above 16 years. Learned counsel for the petitioner has produced the birth certificate of victim girl issued by Village Accountant, Chinchali dated 30.05.2006 wherein, her date of birth is shown as 10.12.2003. It is his further submission that taking into consideration the said date of birth of the victim girl, she is a major as on the date of alleged complaint. It is his further submission that the alleged first incident has been narrated in the complaint as on 15.09.2020 only to bring the alleged offence under POCSO Act. It is his further 7 CRL.P No. 102499 of 2022 submission that on perusal of the photos retrieved from the mobile phone of the petitioner-accused, which are part of the charge-sheet reveal that the victim girl was looking happy when the said photos were taken. Therefore, he contends that the alleged sexual intercourse by this petitioner-accused on the victim girl is consensual. The complaint came to be lodged only to implicate this petitioner as there was a family conflict between complainant and the accused. It is his further submission that as the charge-sheet is filed, the petitioner is not required for custodial interrogation. With this, he prayed to allow the petition.
5. Per contra, learned High Court Government Pleader contends that, the statement of the victim girl has been recorded wherein, she has stated regarding forcible sexual intercourse on her by the petitioner. It is his further submission that the 8 CRL.P No. 102499 of 2022 doctor, who examined the victim girl has noted that there is a old tear of hymen. The mobile phone of the petitioner has been seized and it contained series of videos and FSL report reveal that they are not deleted. The date of birth of the victim girl as per the school records is 03.06.2007. The charge- sheet material shows prima-facie case against the petitioner-accused for the offences alleged against him. It is his further submission that if the petitioner is granted bail, he will threaten complainant and other prosecution witnesses. With this, he prayed to reject the petition.
6. Learned counsel for respondent No.2- complainant submits that the complainant has no objection for grant of bail to the petitioner and further submits that the complaint came to be filed as there was a family conflict between the complainant and the accused.
9CRL.P No. 102499 of 2022
7. Having regard to the submission made by learned counsel for the petitioner, learned counsel appearing for respondent No.2-complainant and the learned High Court Government Pleader for respondent No.1-State, this Court has perused the charge-sheet records, order passed by the Sessions Court and the documents produced by the learned counsel for the petitioner.
8. The date of birth of the victim girl as per her school records, which is part of the charge-sheet is 03.06.2007 and the said certificate is issued on 04.03.2022 by the Head Master, Nobel English and Kannada Medium Primary and High School, Chinchali. Learned counsel for the petitioner has produced the birth certificate of the victim girl issued by Village Accountant, Chinchali dated 30.05.2006 and as per it, the date of birth of the victim girl is 10.12.2003. The doctor, who examined the victim girl, has opined 10 CRL.P No. 102499 of 2022 that her skeletal age is between 18 to 20 years and dental age is above 16 years. Considering the said aspects, it appears at this stage that the victim girl was major as on the date of complaint. The complaint is filed on 05.02.2022. It is submitted by learned counsel for the petitioner that due to family conflict, the complaint came to be filed giving predating the alleged incident only to bring the case under POCSO Act. The said contention is having support of the submission of learned counsel for respondent No.2, who has also stated that the complaint has been filed as there was a family conflict. The photos retrieved from the mobile phone of the petitioner, which are part of the charge-sheet records reveal that the victim girl is looking happy at the time of taking the said photographs. As the charge-sheet is filed, the petitioner is not required for any custodial interrogation.
11CRL.P No. 102499 of 2022
9. The main objection of the prosecution is that, if the petitioner is granted bail, he will threaten the complainant and other prosecution witnesses and flee from justice can be met with by imposing stringent conditions.
10. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for granting bail subject to certain terms and conditions. Hence, I proceed to pass the following:
ORDER The petition filed under Section 439 of Cr.P.C. is allowed. Consequently, the petitioner/accused shall be released on bail in Crime No.16/2022 of Belagavi Rural Police Station, pending in Spl. Case No.93/2022 on the file of the learned Additional 12 CRL.P No. 102499 of 2022 District and Sessions Judge, FTSC-1, Belagavi subject to the following conditions:
i) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with one surety for the likesum to the satisfaction of the jurisdictional Court.
ii) The petitioner shall not indulge in tampering the prosecution witnesses.
iii) The petitioner shall attend the Court on all the dates of hearing unless exempted and co-operate in speedy disposal of the case.
Sd/-
JUDGE AM