Karnataka High Court
Mr. Mubarak S/O Shabbirahmed Mulla vs The State Of Karnataka on 21 November, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.P No. 102773 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 102773 OF 2022 (439-)
BETWEEN:
MR. MUBARAK S/O SHABBIRAHMED MULLA
AGE: 33 YEARS, OCC: PLUMBER
R/O: 6TH CROSS, VEERABHADRA NAGAR
BELAGAVI-590001
...PETITIONER
(BY SRI. PRATIK SHIPURKAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH MARKET P.S.
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD-580001
2. SMT. SHABANA W/O MAHAMMAD ARIF SHAIKH
AGE. 34 YEARS, OCC. HOUSEWIFE
R/O 6TH CROSS, VEERABHADRA NAGAR
BELAGAVI-590001
3. THE CHILD WELFARE COMMITTEE
R/BY ITS CHAIR PERSON C/O PARISH PRIEST
PLOT NO.201 10, ST JOHN THE BAPTIST CHURCH
SHIVAM NAGAR, HINDALGA POST, BELAGAVI-591108
...RESPONDENTS
(SRI. PRASHANTH V. MOGALI, HCGP FOR R1 AND R3;
SRI. A.D.NADAF, ADVOCATE FOR R2 (APPEARED THROUGH VC)
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CRL.P No. 102773 of 2022
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.,
SEEKING TO ALLOW THE PRESENT PETITION AND ENLARGE THE
PETITIONER/ACCUSED ON REGULAR BAIL WHO IS IN CUSTODY
SINCE 18.10.2021 WITH RESPECT TO MARKET P.S. CRIME
NO.95/2020 IN SPL.CASE NO.14/2021 REGISTERED AGAINST THE
PETITIONER FOR THE OFFENCES PUNISHABLE U/S 363, 376-AB,
506, 509 OF IPC AND U/S 4, 6, 8, 12 OF POCSO ACT, 2012.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the sole accused under Section 439 of Cr.P.C., seeking bail in Market P.S. Crime No.95/2020 for the offences punishable under Sections 363, 376AB, 506, 509 of IPC and under Sections 4, 6, 8, 12 of POCSO Act, 2012, pending in Special Case No.14/2021 on the file of the Addl. District and Sessions Judge, Belagavi.
2. The case of the prosecution is that, respondent No.2 the mother of the victim-girl has lodged a complaint stating that, she is residing in a rented house and on 25.10.2020 at about 8.30 p.m., the daughter of the complainant i.e. victim-girl aged 5 years 3 months, went out side the house. Later in the evening her husband returned home after finishing his work, he tried to find the -3- CRL.P No. 102773 of 2022 victim-girl, but he could not trace her. The respondent No.2's elder daughter noticed the petitioner taking the victim-girl along with him. The respondent No.2 enquired the same with the petitioner, but he denied that the victim-girl was at his house. One Smt. Tamzim Shaikh, C.W.7 informed the respondent No.2 that she has seen the petitioner taking the victim-girl with him. The respondent No.2 again went to the petitioner's house and the victim- girl came out of the petitioner's house crying. On the next day, when the respondent No.2 was bathing the victim- girl, she noticed the marks/injuries on the face and private part of the victim-girl. The respondent No.2 enquired about the same with the victim-girl and was informed by her that, the petitioner/accused has removed her clothes and slept with her and further threatened her with dire consequences, if she discloses the fact to anybody. The said complaint came to be registered in Market P.S. Crime No.95/2020 for the offences punishable under Sections 363, 376 AB, 506 and 509 of IPC and under Section 4, 6, 8 and 12 of POCSO Act, 2012. The petitioner/accused -4- CRL.P No. 102773 of 2022 came to be arrested on 10.11.2020 and he is in judicial custody. The police after the investigation, filed charge- sheet against this petitioner/accused for the offence under Sections 363, 376-AB, 506, 509 of IPC and Sections 4, 6, 8 and 12 of POCSO Act. The petitioner filed Criminal Misc. No.1759/2020 seeking bail and the same came to be allowed by order dated 10.12.2020 and he has been released on bail. The respondent No.2 approached this Court in Criminal Petition No.101119/2021 seeking cancellation of bail granted to the petitioner in Criminal Misc. No.1759/2020. The said petition came to be allowed by this Court on the ground that, no notice was issued to the complainant and directed the petitioner/accused to surrender within 15 days. Subsequently, after the surrender of this petitioner/accused, he filed bail application in Special Case No.14/2021 and it came to be rejected by the III Additional District and Sessions Judge, Belagavi, by order dated 04.12.2021. Therefore, the petitioner is before this Court.
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3. Heard the arguments of the learned counsel for the petitioner and the learned HCGP for the respondent- State.
4. Learned counsel for the petitioner would contend that, the alleged incident occurred on 25.10.2020 and the complaint came to be filed on 09.11.2020 and there is a delay in filing the complaint. It is his further submission that, the statement of the victim-girl, mother of the victim-girl and father of the victim-girl have been recorded under Section 164 of Cr.P.C. and there are material contradictions in their statements and the averments of the complaint. He further contended that, the FSL report reveals that, spermatozoa and seminal stain were not detected. It is his further submission that, earlier when this petitioner was granted bail and when he was on bail, till his surrender, there is no any allegation of threat to the complainant and other prosecution witnesses. There are no material in the charge-sheet to connect this petitioner to the alleged crime. It is his further submission -6- CRL.P No. 102773 of 2022 that, the victim-girl has been tutored by her parents. With this, he prayed to allow the petition.
5. Per contra, learned HCGP would contend that, the date of birth of the victim-girl as per her school leaving certificate is 27.07.2015. The Doctor who examined the victim-girl has noted that, her dental age is between 5 to 6 years and opined that, there are signs and symptoms may suggestive of sexual assault as tenderness at vagina. It is his further submission that the statement of the victim- girl, her father and mother were recorded under Section 164 of Cr.P.C., wherein there is a specific allegation against this petitioner committing offences alleged against him. The charge-sheet material shows prima-facie case against this petitioner for the offences alleged against him. If the petitioner is granted bail, there is a threat to the complainant and other prosecution witnesses. With this, he prayed to reject the petition.
6. Learned counsel for the respondent No.2 would contend that, the age of the victim-girl is five years and -7- CRL.P No. 102773 of 2022 there is a presumption under Section 29 of the POCSO Act. It is his further submission that, there is a statement of the eyewitness, who has seen the petitioner/accused taking the victim-girl to his house and subsequently his wife bringing her from the backside door. It is his further submission that, the victim-girl has been admitted as inpatient for two days. Considering all the charge-sheet material, there is a prima-facie case against this petitioner for the offence alleged against him. Considering all these aspects, the Special Judge has rejected his bail petition. The petitioner has not made out any grounds for grant of bail. With this, he prayed to reject the petition.
7. Having heard the learned counsel for the petitioner, learned counsel for the respondent No.2 and the learned HCGP for the respondent No.1-State, this Court has gone through the charge-sheet records.
8. The accusations leveled against this petitioner is that, he took the victim-girl aged 5 years 3 months to his house and committed penetrative sexual assault on her. -8- CRL.P No. 102773 of 2022 Earlier at the investigation stage, this petitioner was granted bail by the Special Court and it came to be cancelled by this Court on the petition filed by the respondent No.2, on the ground that, no notice has been issued to the complainant. Subsequently, the petitioner filed bail application after filing the charge-sheet in Special Case No.14/2021 and it came to be rejected. The victim- girl in her statement recorded under Section 164 of Cr.P.C. has specifically stated the alleged acts of this petitioner. The statement of the father and mother of the victim-girl have also been recorded under Section 164 of Cr.P.C. One of the witnesses whose statement is also recorded under Section 164 of Cr.P.C. has specifically stated about the petitioner taking the victim-girl to his house and subsequently when she and respondent No.2 went to his house, his wife brought the victim-girl from the back door. The Doctor who examined the victim-girl has opined that, there are signs and symptoms may suggestive of sexual assault as tenderness at vagina. There is a presumption under Section 27 of POCSO Act. The victim-girl was -9- CRL.P No. 102773 of 2022 admitted in the KLE Hospital on 13.11.2020 with a complaint of white discharge from the vagina with a history of alleged sexual assault and she was inpatient till 19.11.2020. The victim-girl has specifically stated that this petitioner took her to his house by holding her hand tightly, gagged her mouth, pressed her neck, removed her under pant and brushed her private part with his hand applying force. Merely because there are some contradictions in the statement of the father and mother of the victim-girl and the complaint and the statement the victim girl, is not a ground for grant of bail, when there is a prima-facie case against the petitioner for the alleged offence against him. If the petitioner is granted bail, there is a threat to the complainant and other prosecution witnesses. The petitioner has not made out any grounds for grant of bail. Hence, the petition is dismissed.
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JUDGE SVH List No.: 2 Sl No.: 2