Karnataka High Court
Shri Appasaheb Balgaud Todkar Alias ... vs The State Of Karnataka on 9 September, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.P No. 102312 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 102312 OF 2022
BETWEEN:
SHRI APPASAHEB BALGAUD TODKAR @PATIL
AGE: 42 YEARS, OCC. AGRICULTURE,
R/O. DARGA GALLI, TQ. SOLLAPUR VILLAGE,
TQ. HUKKERI, DIST. BELAGAVI,
PIN-591313.
... PETITIONER
(BY SRI. S.M.MUCHHANDI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THE POLICE INSPECTOR SANKESHWAR,
DIST. BELAGAVI, PIN-591314.
R/BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
HIGH COURT OF KARNATAKA,
AT: DHARWAD BENCH, PIN-580011.
2. SHRI SADASHIV BHIMU MASTI,
AGE: 43 YEARS, OCC. DRIVER,
R/O. LAXMI GALLI, SOLLAPUR VILLAGE,
TQ. HUKKERI, DIST. BELAGAVI,
PIN-591213.
... RESPONDENTS
(BY SRI. PRASHANTH V.MOGALI, HCGP FOR R1;
R2 SERVED)
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CRL.P No. 102312 of 2022
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 OF CR.P.C., SEEKING TO THAT THE PETITION BE
ALLOWED AND THE PETITIONER/ACCUSED MAY BE
ENLARGED ON REGULAR BAIL IN SPL.CASE NO.246/2021,
SANKESHWAR P.S. CRIME NO.153/2021 UNDER SECTIONS
366(A), 376(2)(J), 376(2)(L) OF IPC AND UNDER
SECTIONS 4 AND 5(K) AND 6 OF POCSO ACT PENDING ON
THE FILE OF LEARNED ADDITIONAL DISTRICT AND
SESSIONS JUDGE, FTSC-1, BELAGAVI.
THIS CRIMINAL PETITION IS COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the sole accused under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.153/2021 of Sankeshwar Police Station, registered for the offences punishable under Sections 366(A), 376(2)(J) and 376(2)(L) of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and under Sections 4, -3- CRL.P No. 102312 of 2022 5(K) & 6 of the Protection of Children from Sexual Offences Act (hereinafter referred to as the 'POCSO Act', for brevity).
2. The case of the prosecution is that, one Sadashiv Masti has filed complaint stating that the victim girl is his daughter and she is aged 17 years and she is mentally retarded and he is having a son. It is further stated that on 01.09.2021 at about 11 O'clock his mentally retarded daughter/victim girl and his son went on a cycle to his relatives house for playing. It is at about 4:00 p.m., his neighbour Jafar Kulkarni informed him that this petitioner/accused took both mentally retarded victim girl and his son on his motorcycle to his field. Immediately the complainant and Jafar went to the field and saw his son sitting near the well and on enquiry he told them that his sister has been taken into sugarcane field. The -4- CRL.P No. 102312 of 2022 complainant and Jafar saw that the petitioner has removed his clothes and also the under garments of the victim girl. After seeing the complainant, the petitioner took his clothes and ran away and the same came to be registered in Crime No.153/2021 of Sankeshwar Police Station for the offences punishable under Sections 354(A) and 354(B) of IPC and under Sections 8 and 12 of POCSO Act. The petitioner came to be arrested on 03.09.2021. The Investigating Officer after investigation has filed charge sheet and now the case is pending in S.C.No.246/2021. The petitioner filed Criminal Miscellaneous No.1395/2021 seeking bail and the same came to be rejected by the learned III Additional District and Sessions Judge, Belagavi by order dated 24.12.2021. Therefore, the petitioner is before this Court seeking bail.
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3. Heard the arguments of the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent No.1-State. Respondent No.2 who was present on the previous date has submitted that, he has no objection for granting bail to the petitioner.
4. The learned counsel for the petitioner would contend that, in the compliant and in the further statement of complainant dated 02.09.2021 there is no allegation of sexual intercourse by the petitioner on the victim girl but it is alleged in further statement of the complainant dated 05.09.2021. Even mother of the victim girl in her statement has not made any allegation of sexual intercourse. In the MLC, in the history column, it is mentioned that the petitioner tried to sexually assault the victim girl. The victim girl who was admitted to -6- CRL.P No. 102312 of 2022 hospital on 02.09.2021 has been discharged on 03.09.2021 and the Doctor who examined the victim girl has stated that vaginal smear for spermatozoa - Negative, hymen not intact (posterior old tear) and no fresh injuries noted. The age of the victim girl as per Radiological examination is more than 20 years and as per Dental examination it is between 15 to 16 years. He has further opined that the lady is used for an act like that of sexual intercourse. The date of birth of the victim girl as per her school records is 18.03.2004 and she was aged 17 years 6 months as on the date of the alleged offence. The victim girl in her statement recorded under Section 164 of Cr.P.C., has not stated any sexual intercourse but she has only stated that the petitioner caused pain on her private part. Even the father of the victim girl has not stated any -7- CRL.P No. 102312 of 2022 allegation of sexual intercourse by this petitioner on his daughter in his statement recorded under Section 164 of Cr.P.C. The brother of the victim girl who was present near the spot, in his statement recorded under Section 164 of Cr.P.C., has stated that the petitioner took the victim girl in the sugarcane field and removed her all clothes and did not know what he did with her. It is his further submission that looking to all these allegations, offences under Section 4 and 6 of POCSO Act are not attracted at the most offences under Sections 8 and 12 of POCSO Act are attracted. The petitioner is in judicial custody since one year and as the charge sheet is filed, the petitioner is not required for any custodial interrogation. With this, he prayed to allow the petition.
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5. Per contra, learned High Court Government Pleader for respondent No.1 would contend that, perusal of the entire charge sheet there is a prima facie case against the petitioner for the offences alleged against him. The Doctor who examined the victim girl has noted that vaginal smear for spermatozoa - Negative, hymen not intact (posterior old tear) and no fresh injuries noted. The victim girl in her statement recorded under Section 164 of Cr.P.C., has stated that the petitioner has caused pain on her private part. The statement of the father, brother and CW9 are recorded under Section 164 of Cr.P.C. It is his further submission that, merely because the father of the petitioner is bed ridden is not a ground for grant of bail. If the petitioner is granted bail, he will threaten the complainant and other -9- CRL.P No. 102312 of 2022 prosecution witnesses. With this, he prayed to reject the petition.
6. Having regard to the submission made by the learned counsel for the petitioner and the learned High Court Government Pleader for respondent No.1, this Court has gone through the charge sheet records.
7. The accusation against this petitioner is that, he took the victim girl and his brother/CW7 on his motorcycle to his land and made CW7 to sit on the katta of well and took the victim girl in the sugarcane crop and removed her clothes and removed his clothes and slept on her and at that time, the father and CW9 came and the father of the victim girl assaulted the petitioner with sugarcane piece and he took his clothes and ran away. As per the case of the prosecution, the victim girl is
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CRL.P No. 102312 of 2022 aged 17 years 6 months as on the date of the alleged offence and her date of birth is 18.03.2004 as per her school records. The victim girl is stated to be mentally retarded. The Pschychiatrist who examined the victim girl has stated that she is not capable of giving statement. The victim girl has been examined by the Doctor on 02.09.2021 and he has stated that vaginal smear for spermatozoa - Negative, hymen not intact (posterior old tear) and no fresh injuries noted and opined that a lady is used to an act like that of sexual intercourse. The complainant/father of the victim girl in his complaint and further statement recorded under Section 164 of Cr.P.C., has not stated any sexual intercourse by this petitioner. The victim girl in her statement recorded under Section 164 of Cr.P.C., has not stated any sexual intercourse but has stated that the
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CRL.P No. 102312 of 2022 petitioner caused pain on her private part by making signs. Whether the offences under Sections 4 and 6 of the POCSO Act or offences under Sections 8 and 12 of the POCSO Act are attracted is a matter of trial. The petitioner is in judicial custody since one year and as charge sheet is filed, the petitioner is not required for any custodial interrogation. More so ever the respondent No.2 who was present on the previous date has submitted that, he has no objection for granting bail to this petitioner. The main apprehension of the prosecution is that if the petitioner is granted bail, he will threaten the complainant and other prosecution witnesses, can be met with by imposing stringent conditions.
8. 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
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CRL.P No. 102312 of 2022 granting bail subject to certain terms and conditions. Accordingly, 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.153/2021 of Sankeshwar Police Station subject to the following conditions:
i) The petitioner/accused 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/accused shall not indulge in tampering the prosecution witnesses.
iii) The petitioner/accused shall attend the Court on all the dates of hearing
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unless exempted and co-operate in speedy disposal of the case.
SD/-
JUDGE RH