Karnataka High Court
Basavaraj Yadavannavar vs State Of Karnataka on 3 January, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 3RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No. 103975/2022
BETWEEN :
--------------
Basavaraj Yadavannavar @ Basavaraj
Girimallappa Yadavannavar
Age:54 years, Occ:President of
Seience College, Dharwad
R/o 2nd cross, Sampige nagar
Dharwad.
... PETITIONER
(By Sri Bahubali N Kanabargi, Advocate - V.C)
AND :
-------
1. State of Karnataka
By State Public Prosecutor
High Court of Karnataka.
Dharwad Bench, at Dharwad
Through Dharwad Urban
P.S.-580 001.
2. Padubai
W/o Inju Gundre
Age:35 years, Occ:House wife
2
R/o. Nagaragalli, Tq:Khanapur
District:Belagavi, Pin- 591 302.
... RESPONDENTS
(By Sri Prashant Mogali, HCGP)
---
This Criminal Petition is filed under Section 439 OF
Cr.P.C. seeking to enlarge the accused No.1/Petitioner on
Bail in Spl.S.C.No.73/2022, for the alleged offences
Under Sections 354(A), 363, 376(J) 109 of IPC and Under
Section 6, 8, 12 and 17 of POSCO Act in Crime
No.172/2022 sub Urban Police Station Dharwad on the
file of II Additional District and session and special Judge,
Dharwad.
This Petition coming on for orders through physical
hearing/video conference this day, the court passed the
following;
ORDER
This petition is filed by accused No. 1 under Section 439 of Cr.P.C. seeking bail in crime No. 172/2022 of Sub- urban Police Station, Dharwad for the offence punishable under Sections 354(A), 363, 376(J), 109 of IPC and Sections 6, 8, 12 and 17 of POCSO Act.
3
2. The victim has filed complaint stating that she after completion of her 10th standard, joined Vishveshwarayya Science College for I year PUC Science for the academic year 2021-22 and she was staying in Awwa Paying Guest Hostel and she is now studying in II PUC. It is further stated that, accused No. 1 made a phone call saying that, the college has started and believing the words of accused No.1, on 24.08.2021, both she and her friend Bharati came to college and the Seniors in the college told that the college is not yet started and it will start after one week. On the next day the victim girl asked permission of accused No. 1 who is the President of the college to go to market for shopping and at that time, accused No.1 himself took her to Hubballi in his car, visited one unknown mall, got purchased the clothes to the victim-girl and returned back to the Hostel. During September, accused No.1 convinced the victim girl and took her to temple saying that if she visits to temple, her mind will become fresh and he 4 also told that, educational thinkers will say something to her studies. Believing the words of accused No.1, the victim girl went to Dandeli along with accused No. 1 and stayed in the State Lodge opposite to bus-stand at Dandeli and after completion of the meals, accused No.1 told the victim-girl that in Bangkok girls are free and asked the victim girl to be free like that and thereafter came back. Accused No. 1 took the victim girl to the said lodge many times. It is further stated that, the victim-girl went along with accused No. 1 to Dandeli in his car and stayed in the lodge and accused No.1 gave juice to drink, but it was beer and he touched her body and behaved badly with her and she got sleep. When she got up, there were no clothes on her body and she came to know that accused No. 1 had physical contact with her. Therefore, the victim girl and her friend both approached accused No.1, but he behaved badly with them. It is further stated that, the Principal of the college i.e. accused No. 2 used to send the girl students to meet 5 accused No. 1 with regard to small topics and accused No. 2 was encouraging the acts of accused No. 1. With these allegations the said complaint came to be filed which is registered in the Sub-urban Police Station of Dharwad in Crime No. 172/2022 for the aforesaid offences.
3. The petitioner - accused No.1 came to be arrested on 25.08.2022 and he is in judicial custody. The petitioner filed bail application in Dharwad Sub Urban P.S. Crime No.172/2022 and the same came to be rejected by the II Additional District and Sessions and Special Judge, at Dharwad, by order dated 07.09.2022.
4. Earlier this petitioner had filed a petition before this Court in Crl.P. No. 102669/2022 seeking bail and the same came to be rejected by order dated 13.10.2022. Thereafter, charge sheet came to be filed against this petitioner - accused No. 1 and another for the offence punishable under 6 Section Sections 354(A), 363, 376(J), 109 of IPC and Sections 6, 8, 12 and 17 of POCSO Act. Thereafter the petitioner filed bail application and the same came to be rejected by the II Additional District and Sessions and Special Judge, Dharwad, by order dated 15.11.2022. Therefore, petitioner is before this Court seeking bail.
5. Heard arguments of the learned counsel appearing for the petitioner and learned HCGP for respondent No. 1 State. Inspite of service of notice, respondent No. 2 remained absent and unrepresented.
6. Learned counsel appearing for petitioner would contend that looking to the averments made in the complaint it is clear that this petitioner moved freely with the petitioner and the petitioner has got purchased clothes and took her to temple. It is his further submission that even the victim girl, as per the case of the prosecution, has 7 moved with this petitioner to different places and she has not made any protest against him and even she has not reported the same to her parents. It is his further submission that victim girl has studied in High School at Dandeli and allegation against the petitioner is that he took her to Dandeli which is known place to her. It is his further submission that the victim girl is a grown up girl and she can understand the smell of beer and differentiate the smell with that of juice. There is a delay in filing the complaint. The Doctor who examined the victim girl has only observed that her hymen is absent and there is no opinion given by the Doctor with regard to sexual assault. The statement of the victim girl has been recorded under Section 164 Cr.P.C. and there are inconsistencies in that statement and the averments made in the complaint. The victim girl has stated in her statement recorded under Section 164 Cr.P.C. that the accused took her to Goa and subsequently in the statement recorded by the Police she has stated that she 8 has not been taken to Goa. The statement of one Nandini who is also alleged to have been a victim under this petitioner and who left the college has not been recorded. The statement of another victim who is alleged to have accompanied this victim girl with the petitioner has not alleged any sexual harassment by this petitioner on her. There is a delay in recording the statement of the victim girl by the Police. The victim girl has given different versions at different point of time. It appears, from a reading of Section 164 statement, that the complaint has been lodged by the victim girl at the instigation of members of an organization by name ABVP. As the charge sheet is filed the petitioner is not required for custodial interrogation. Accused No. 2 has been granted bail by the Sessions Court. With this he prayed to allow the petition.
7. Per contra learned HCGP appearing for respondent No. 1 State would contend that the date of birth of the 9 victim girl as per her school records is 12.02.2005 and she is aged below 18 years. The Police have recorded the statements of other students of the same college who are cited as C.W. 9 to C.W.18 in the charge-sheet and their statements under Section 164 Cr.P.C. is also recorded wherein they have stated the acts of this petitioner. It is his further submission that C.W.20 to C.W.22 are the staff working in State Lodge, Dandeli, who have identified the victim girl stating that one person came along with the victim girl stating that she is his daughter and stayed in their lodge on different dates and copy of the lodge register reveals the name of petitioner staying on 05.03.2022 and 12.02.2022 and he was accompanied by another. The Doctor who examined the victim girl has noted that her hymen is absent. The charge sheet material show prima facie case against the petitioner for the offence alleged against him. The victim girl and other prosecution witnesses who are cited as C.W.9 to C.W.18 are studying in the 10 college wherein the petitioner is the President and if he is granted bail there is a threat to their educational career and also threat by this petitioner. With this he prayed to reject the petition.
8. Having regard to the submissions made by the learned counsel for the appellant and the learned High Court Government Pleader this Court has gone through the charge sheet records.
9. The petitioner is the president of the Vishveshwaraiah Science College and accused No. 2 is the Principal of the said college. The victim girl/complainant is studying in the said college in II PUC, Science. There are other girl students studying in the said college. The date of birth of the victim girl as per school records is 12.02.2005 and as on the date of alleged incident she is aged 17 years. The averments of the complaint and statement of the victim 11 girl reveal the sexual assault by this petitioner on the victim girl. There are statements of other girl students who are studying in the same college regarding the alleged acts of this petitioner harassing the students who are studying in the college. The victim girl and other girl students in their statements recorded under Section 164 of Cr.P.C. have stated the acts of petitioner - accused No. 1 which corroborates with the averments of the complaint. The statement of the staff working in State Lodge, Dandeli (C.W.20 to C.W.22) wherein they have identified the person brought by the Investigating Officer i.e., petitioner - accused No. 1 is the person who took the room stating that the girl accompanying him is his daughter. Merely because the victim girl freely moved with this petitioner it cannot be considered that she gave consent as she is aged below 18 years. The petitioner is alleged to have misbehaved with other girl students also. The petitioner is a married man having wife and children. The Doctor who examined the 12 victim girl has opined that the hymen of the victim girl is absent. The charge sheet material show prima facie material against this petitioner for the offences alleged against him. The victim girl - complainant and other prosecution witnesses are studying in Vishveshwaraiah Science College wherein this petitioner is the President. If the petitioner is granted bail there is a threat to the victim girl and other girl students who are cited as charge sheet witnesses as they are still studying in the same college. Therefore, the petitioner is not entitled for grant of bail. Hence, petition is dismissed. However, the petitioner is at liberty to file bail petition after the victim girl and other girl students, i.e., C.W.1, C.W.9 to C.W.18 complete their II PUC course.
Sd/-
JUDGE LRS.
CT-SM