Karnataka High Court
Madhu vs State Of Karnataka By on 13 October, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.1406 OF 2022
BETWEEN:
MADHU
S/O KRISHNAPPA
AGED ABOUT 35 YEARS
R/AT DODDAGOLLAHALLI VILLAGE
KUNDANA HOBLI,
DEVANAHALLI TALUK
BANGALORE RURAL DIST - 562 110
(NOW AT J.C)
... APPELLANT
(BY SRI. NAGABHUSHANA REDDY K, ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
VISHWANATHAPURA POLICE STATION
BANGALORE DISTRICT
REPRESENTED BY S.P.P
HIGH COURT BUILDING
BANGALORE - 01
2. CHELUVAPPA
AGED ABOUT 40 YEARS
S/O CHIKKA ANJINAPPA
R/AT DODDAGOLLAHALLI VILLAGE
KUNDANA HOBLI,
DEVANAHALLI TALUK
BANGALORE RURAL DIST - 562 110
...RESPONDENTS
THIS APPEAL IS FILED UNDER SECTION 14(A)(2) OF
THE CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE
THE ORDER DATED 01.08.2022 PASSED BY THE LEARNED
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ADDL. DISTRICT AND SESSIONS JUDGE, FTSC-II,
BENGALURU RURAL DISTRICT AT BANGALORE IN
CRL.MISC.1297/2022 AND RELEASE THE ABOVE APPELLANT
ON BAIL IN CRIME NO.91/2022 OF VISHWANATHAPURA P.S.
FOR ALLEGED OFFENCES PUNISHABLE UNDER SECTIONS
323, 354(B), 376(3), 504, 506 OF IPC AND SECTION 4(2),
5(L), 6 OF POCSO ACT AND SECTION 3(1)(r)(s), 3(2)(V) of
SC/ST ACT, WHICH IS PENDING BEFORE ADDL. DISTRICT
AND SESSIONS JUDGE, FTSC-II, BENGALURU RURAL
DISTRICT AT BANGALORE, TO MEET THE ENDS OF JUSTICE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal filed under Section 14A(2) of SC & ST (Prevention of Atrocities) Act, 1989, appellant who is accused is seeking bail in Cr.No.91/2022 for the offences punishable under Sections 323, 354B, 376(3), 504, 506 I.P.C, Section 4(2), 5(L), 6 of POCSO Act and Section 3(1)(r)(s), 3(2)(v) of SC & ST Act, by setting aside the order dated 01.08.2022 passed in Crl.Misc.1297/2022 by the Addl.District and Sessions Judge, FTSC-II, Bengaluru Rural District.
2. For the sake of convenience the parties are referred to by their rank before the trial Court. 3
3. Respondent No.1 - State has appeared through High Court Government Pleader.
4. Respondent No.2/complainant is duly served.
5. Accused is seeking bail contending that based on complaint dated 30.06.2022, filed by the complainant/respondent No.2, a case in Cr.No.91/2022 came to be registered against him for the offences punishable under Sections 323, 354B, 376(3), 504, 506 I.P.C, Section 4(2), 5(L), 6 of POCSO Act and Section 3(1)(r)(s), 3(2)(v) of SC & ST Act.
5.1 He is innocent of the offences alleged. There is inordinate delay of 4 days in lodging the complaint. The contents of the complaint indicate that it is drafted at the instance of persons who are inimical towards accused and his family members. The complaint as well as statement of the prosecutrix indicate that she is consenting party and there was no force by accused. The provisions of the offences punishable under Sections 323, 354B, 376(3), 504, 506 I.P.C, Section 4(2), 5(L), 6 of POCSO Act and Section 3(1)(r)(s), 3(2)(v) of SC & ST 4 Act are not attracted. The alleged offences are not punishable with death or imprisonment for life. Learned counsel for accused submitted that the case of the prosecution consists of full of contradictions. There are no other criminal cases pending against the accused and prays to allow the appeal and release him of bail.
6. In support of his arguments, learned counsel for appellant has relied upon the following decisions:
(i) 2016 Supreme (Kar) 142
(ii) 2015 Supreme (P 7 H) 1104
(iii) 2014 Supreme (Ker) 8
(iv) Crl.P.No.4306/2018
(v) AIR 1984 (SC) 372
7. On the other hand learned High Court
Government Pleader resisted the appeal and submitted that when the complaint was filed the prosecutrix was aged 16 years. The complaint averments reveal that since about one year prior to the date of complaint i.e., when the prosecutrix was aged 15 years, accused started sexually assaulting her and on the date of incident i.e., on 26.06.2022 at 11.30 p.m. on hearing the cries of 5 prosecutrix, when her parents i.e., complainant and his wife rushed to the spot consisting of a trench (ºÀ¼Àî) surround by bushes which is at a distance of about 10 feet from their house, they found accused sexually assaulting the prosecutrix and when they intervened, accused abused them in filthy language referring to their caste and saying that being a person belonging to higher caste he is entitled to enjoy the girls and women of lower caste and he also attempted to disrobe the mother of the prosecutrix by pulling her saree and assaulted her. He also gave threat of killing the prosecutrix and splashing acid on her. The complaint further reveal that from the prosecutrix the complainant and his wife came to know that she was being sexually assaulted about 5-6 times by the accused since one year under a promise to marry her. After the incident, complainant approached the brother of the accused and informed him about the incident. Since there was threat by the accused, he did not choose to file complaint immediately and hence the delay in filing the complaint.
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8. Based on the complaint, case is registered against accused and the Investigation is taken up. The statement of the prosecutrix as well as her mother is recorded by the jurisdictional Magistrate under Section 164 Cr.P.C., wherein they have reiterated the allegations made in the complaint. The accused is arrested and both accused and prosecutrix are subjected to medical examination. The incriminating articles collected from the person of accused and prosecutrix are subjected to chemical examination. After completion of the investigation, charge sheet is filed against the accused for the offences punishable under Sections 323, 354B, 376(3), 504, 506 I.P.C, Section 4(2), 5(L), 6 of POCSO Act and Section 3(1)(r)(s), 3(2)(v) of SC & ST Act.
9. At the time when the first incident took place, prosecutrix was aged 15 years. Even when the complaint was filed, she was aged 16 years. As per Section 2(d) of POCSO Act, child means any person below the age of 18 years and as such the provisions of POCSO Act are attracted. Therefore, the arguments of the learned counsel that prosecutrix was a consenting parties does 7 not enure the benefit of the accused. Being a child, her consent is immaterial. Admittedly, the prosecutrix and her parents belong to Adi Dravida Community which comes under Scheduled Caste and as such the provisions of SC & ST (Prevention of Atrocities) Act, are also attracted. The medical report also indicate that prosecutrix was sexually assaulted.
10. Even though already investigation is completed and charge sheet is filed, having regard to the fact that prosecutrix and her family members being economically weak and downtrodden and more specifically the threat given by the accused, the possibility of he tampering with the witnesses and also causing harm to the prosecutrix as well as her family members cannot be ruled out. With the accused out on bail, the possibility of prosecutrix and her family members not in a position to give evidence without being intimidated also cannot be ruled out. Charge sheet makes out a strong prima facie case against the accused. At the stage of considering the bail, the Court cannot 8 indulge in appreciation of the contents of the charge sheet as in case of appreciation of evidence after trial.
11. So far as the decisions relied upon by the accused are concerned, they are not applicable to the peculiar facts and circumstances of the present case.
12. Thus, from the above discussion I hold that this is not a fit case to grant bail to the accused and accordingly I proceed to pass the following:
ORDER Appeal is hereby dismissed.
Sd/-
JUDGE RR