Karnataka High Court
Sri.Bakkarsab @ Abubakar S/O Hasansab ... vs State Of Karnataka on 20 August, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF AUGUST 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.PETITION NO.100616/2020
BETWEEN:
SRI.BAKKARSAB @
ABUBAKAR S/O HASANSAB NADAF
AGE: 29 YEARS, OCC: LABOUR,
R/O: SORAGANVI VILLAGE,
TQ: MUDHOL, DIST: BAGALKOTE.
... PETITIONER
(BY SRI. SRINAND A. PACHHAPURE, ADV.)
AND
STATE OF KARNATAKA
THROUGH MUDHOL POLICE STATION,
NOW REP. BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH AT DHARWAD.
... RESPONDENT
(BY SRI.VINAYAK KULKARNI, AGA)
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THIS CRIMINAL PETITION IS FILED U/S 439 OF
CR.P.C., SEEKING TO GRANT BAIL TO THE
PETITIONER IN SPL.C.NO.122/2018 ON THE FILE OF
II ADDL. DISTRICT AND SESSIONS JUDGE,
BAGALKOTE (CRIME NO.279/2018) FOR THE ALLEGED
OFFENCES PUNISHABLE UNDER SECTION 323, 504,
498A, 376, 376(1), 376(2)(n), 376(3), 509, 354(A)
IPC SECTION 4 OF DOWRY PROHIBITION ACT,
SECTIONS 4, 6, 8, 14, 15 OF PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, BY THE
RESPONDENT MUDHOL POLICE.
THIS PETITION COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT PASSED THE
FOLLOWING:
ORDER
The accused has filed this petition under Section 439 of Cr.P.C. seeking to enlarge him on bail in Crime No.279/2018 of Mudhol police station, registered for the offences punishable under Sections 323, 504, 498A, 376, 376(1), 376(2)(n), 376(3), 509, 354A of Indian Penal Code (hereinafter referred to as the 'IPC') and under Sections 4, 6, 8, 14 and 15 of Protection of Children from Sexual Offences Act, 2012 (for short referred to as 'POCSO Act'). -3-
2. Heard the learned counsel Sri.Srinand A.Pachhapure for the petitioner and the learned AGA Sri.Vinayak Kulkarni for respondent -State.
3. Brief facts of case of the prosecution are that the accused being the uncle of the victim was ill- treating the complainant, who is his wife and also subjecting the victim, who was aged 13 years, to sexual assault since 24.06.2014 and the accused had taken obscene videos and photos of the victim and stored in a SD card. It is further contended by the prosecution that the accused not only subjected the victim to sexual assault continuously from 24.06.2014 till the date of registration of the case i.e. 24.07.2018, he had handed over the SD card with the obscene videos and photos of the victim to the complainant. In this regard the complainant had lodged the first information with the police against the accused for the above said offences. Thereafter the victim was -4- subjected to medical examination and as per the medical opinion the victim was subjected to regular forceful intercourse. Therefore it is contended that the accused has committed the offences stated above.
4. The accused was apprehended and is in judicial custody since 29.09.2018. Similar bail application was filed before the trial Court but the same was came to be rejected. Therefore, the accused has filed this petition seeking to enlarge him on bail subject to conditions, on various grounds.
5. The learned advocate for the petitioner contended that even though serious allegations are made against the petitioner for having committed the offences, the case of the prosecution that the accused had recorded obscene videos and taken such photos of the victim and the SD card with such obscene videos and photos was handed over to his wife, cannot be believed even for a moment. There is -5- inordinate delay in lodging the complaint. In support of the allegations made in the first information, the victim was examined before the trial Court as PW1 and she has not supported the case of the prosecution. She has not alleged commission of the offences against the accused. The accused was apprehended on 29.09.2018 and since then is in judicial custody. His detention in the custody will amount to pretrial punishment. The accused has lost his earnings all these days. He is not in a position to eke out his livelihood. The petitioner is ready and willing to abide by the conditions that will be imposed by this Court. Hence, he prays for allowing the petition.
6. Per contra the learned AGA opposing the petition for grant of bail submitted that serious allegations are made against the petitioner for having committed the offences against the victim, who is -6- none other than his brother's daughter. The complainant is none other than the wife of the petitioner. The medical certificate relied on by the prosecution clearly discloses commission of the offences by the accused. The doctor has opined that there was regular forcible intercourse on the victim and her hymen was ruptured. The age of the victim is hardly 14 to 15 years as her date of birth was 05.04.2005. Moreover, the SD card with the video clippings and photos stored in it was sent for FSL examination and the report from the FSL examination discloses that the micro SD card contains 2 obscene video files and 12 obscene image files relating to the case. It is further opined that the video files or the image files are not tampered/edited/marfed. Therefore the learned AGA submitted that all these materials are produced against the accused for having committed the offences. Though PW1 has not -7- supported the case of the prosecution for the reasons best known to her, it will not enable the accused to seek bail. The accused is in a position to influence the complainant, who is none other than his wife and other witnesses, who are material to the prosecution case.
7. He also submitted that merely because the victim has not supported the case of the prosecution, it is not sufficient to disbelieve the version of the prosecution. Under such circumstances, the petitioner is not entitled for grant of bail and he prays for dismissal of the petition.
8. I have perused the materials on record.
9. The allegations made against the petitioner is something serious. Moreover the victim is none other than his brother's daughter and the complainant is his wife. Some of the witnesses cited by the prosecution are the neighbours or the villagers. -8- Moreover the medical certificate, FSL report supports the case of the prosecution. The contention of the learned advocate for the petitioner that the accused can be enlarged on bail with stringent conditions to take care of the apprehension expressed by the prosecution, cannot be accepted as no such conditions will serve the purpose for the present. Looking into the nature of the offences and also the close relationship between the accused and the complainant and other witnesses, his contention cannot be accepted. Under such circumstances, enlarging the petitioner on bail may prove to be fatal to the case of the prosecution. It cannot be said at this stage that the accused is falsely implicated by his wife, making false allegations without any basis. Anyhow the trial has already begun. The material witnesses, including the complainant, are to be examined. If at this juncture, the accused is enlarged on bail, definitely it -9- will have a bearing on the quality of the evidence they depose before the Court. Hence I am of the opinion that the petition filed by the petitioner is liable to be rejected.
10. Hence the same is rejected. Consequently, the petition is dismissed.
SD/-
JUDGE KGK