Karnataka High Court
Shri. Roshan S/O David Dcruze vs The State Of Karnataka on 8 December, 2021
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8 T H DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No.102048 OF 2021
BETWEEN:
SHRI ROS HAN S/ O. DAVID D'CRUZE
AGE: 20 YEARS , OCC: STUD ENT,
R/O: H.NO.64, CHURCH STREET ,
CAMP, BELAGAVI .
... PETITIONER
(BY SRI NAGARAT HNA S. PATTAR, A DV.)
AND:
1. THE STATE OF KARNATAKA
THROUGH THE P S I CAM P P.S . BELA GAVI
R/BY STATE PUBLI C PROSECUTOR
HIGH COURT BENCH DHARWAD .
2. SMT. MUBASSIRIN HABIBULLA BEPA RI
AGE 32 YEARS , OCC: HOUSEHOLD
PRESENT R/O H.N O.95, MOMIN GA LLI,
HIREBAGEWADI HALI, 591 109,
TQ.DIST. BELAGAV I. PREVI OUSLY . H.NO.64,
CHURCH STREET, CAMP, BELAGAVI .
... RES PONDENTs
(BY SRI. RAMESH B. CHIGARI , HCGP FOR R1
SRI W. M. SHAHAPURI , ADV , FOR R2)
THIS CRIMINAL PETITION IS FILED U/S 439 OF
CR.P.C., SEEKING TO BY ALLOWIN G THIS PETITION
THE PETITIONER/ ACCUSED NO.1 MAY PLEASE BE
RELEASED ON BAIL, IN CAMP POLICE CRIME
NO.57/ 2021 FOR THE OFFEN CES PUNISHABLE UNDER
2
SECTION 376 (D) OF IPC AND SECTI ON 4, 5 AND 6 OF
THE PROTECTION OF CHILDREN FROM SEXUAL
OFFENCE A CT POCSO ACT 2012 PEN DING ON THE FI LE
OF THE III ADD ITIONAL DISTRICT AND SESSION S
JUDGE BELAGAVI , IN CRIMINAL MISC. NO.878/2021
WHICH CAME TO BE REJ ECTED ON 24.09.2021.
THIS PETITION COMING ON F OR ORDERS, T HIS
DAY, THE COURT MADE THE F OLLOWING:
ORDER
Accused No.1 has filed this petition 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.57/2021 of Camp Police Station registered for an offence punishable under Section 376DB of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Sections 4, 5 and 6 of the Protection of Children from Sexual Offences Act, 2012.
2. It is the case of the prosecution that, one Smt. Mubasshirin has filed the complaint stating that she is residing in Church street, 3 camp, Belagavi, in a rented house and her husband is working in Arab country. She is having 3 children including the victim girl aged 3 years 7 months. It is further stated that on 12/07/2021 due to ill-health of the complainant's mother-in-law, she was hospitalized in KLE hospital and the complainant used to visit KLE hospital daily. One of the aunts of the complainant was residing along with children. On 15.07.2021, as usual, the complainant went to KLE hospital and returned home. Thereafter, the complainant went to market and returned home at about 7:00pm. At that time, the complainant's aunt informed the complainant that the victim is having pain on her private part and urine is not passing easily. The complainant checked the private part of the 4 victim girl and the said portion was red in colour. The complainant and said Reshma- aunt, took the victim girl to one Kahji's hospital, who told the complainant that there is infection and gave treatment. On 17.07.2021 at 11:00am, the complainant found that from the private part of the victim, blood was oozing with white liquid with foul smell. Immediately, the complainant took the victim to Tukkar hospital situated at Basawan Galli wherein after examination of the victim girl, the Medical Officer suggested the complainant to take the victim to Civil Hospital, as something mischief is done with private part of the victim. The complainant did not go to the Civil Hospital. Thereafter, the complainant asked the victim what happened, at that time, the victim informed the complainant that the 5 petitioner/accused No.1 and one person Hassnain (juvenile offender) both took the victim to the bed room and threatened her and the act did by the accused. The petitioner/accused No.1 came to be arrested on 28.07.2021. The Investigating officer, after completing investigation, has filed the charge- sheet against the petitioner/accused No.1 for the offence under Section 376DB of IPC and Sections 4, 5 and 6 of POCSO Act. The petitioner/accused No.1 filed Crl.Misc. No.878/2021 seeking bail and the same came to be rejected by the learned III Additional District and Sessions Judge, Belagavi, by order dated 24.09.2021. Therefore, the petitioner is before this Court seeking bail.
3. Heard the arguments of the learned counsel appearing for the petitioner/accused 6 No.1, the learned High Court Government Pleader for respondent No.1-State and the learned counsel for respondent No.2/complainant.
4. It would be the contention of the learned counsel for the petitioner that, on looking to the statement of the victim girl under Section 164 of Cr.P.C., it seems the victim child is tutored. The Doctor, who examined the victim girl, has found no injuries over her body. The complainant is a tenant under the petitioner/accused No.1 and as she is asked to vacate the premises, she has filed a false complaint against the petitioner/accused No.1. On perusal of the entire charge-sheet material, there is no prima facie case against the petitioner/accused No.1 for the offences alleged. As charge-sheet is filed, the petitioner 7 is not required for custodial interrogation. The petitioner is a B.Com student and a football player and if he is detained in judicial custody, it affects his educational career. With this, she prayed to allow the petition.
5. Per contra, learned High Court Government Pleader for respondent No.1-State would contend that the date of birth of the victim girl is 27.12.2017 and she is aged 3 years 7 months as on the date of the incident. The statement of the victim girl recorded under Section 164 of Cr.P.C. clearly shows the overt act of the petitioner and another committing penetrative sexual assault. The Doctor, who examined the victim girl, has noted that, there is tear of hymen. One of the offences alleged against the petitioner is punishable with death or imprisonment for life. On perusal of the 8 entire charge sheet papers, there is prima facie case against the petitioner for the offences alleged against him. With this, he prayed to reject the petition.
6. Learned counsel for respondent No.2- complainant contended that the child is aged 3 years 7 months and in her statement recorded under Section 164 of Cr.P.C., she has categorically stated the act of the petitioner and another committing penetrative sexual assault on her. He further submits that there is no dispute with regard to tenancy of the complainant with her landlord i.e. the parents of the petitioner/accused No.1. With this, he prayed to reject the petition.
7. Having regard to the submission made by the learned counsel for the petitioner 9 and the learned High Court Government Pleader, this Court has gone through the charge sheet records and the statement of the objections filed by the learned Government Pleader.
8. The accusation levelled against the petitioner/accused No.1 is that he along with juvenile offender took the victim girl, aged 3 years 7 months, inside the house and had forcible penetrative sexual assault on her one after the other. The victim girl in her statement recorded under Section 164 of Cr.P.C. has clearly stated the overt act of the petitioner and another of having penetrative sexual assault on her in her own language. The Doctor, who examined the victim girl, has noted that there is tear of hymen. The very 10 aspect corroborates the statement of the victim girl.
9. On perusal of the entire charge-sheet material, there is prima facie case against the petitioner for the offences alleged against him. One of the offences alleged is punishable with death or imprisonment for life. Merely because, the petitioner is a B.Com student and a football player is not a ground for grant of bail. The offences alleged are heinous offence punishable with death or imprisonment for life. The petitioner has not made out any grounds for grant of bail.
Hence, the petition is dismissed.
Sd/-
JUDGE kmv