Karnataka High Court
Mahesh S/O Basappa Kushappnavar Aliyas ... vs The State Of Karnataka on 26 March, 2024
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NC: 2024:KHC-D:5745
CRL.P No. 100501 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL PETITION NO. 100501 OF 2024 (439)
BETWEEN:
MAHESH S/O BASAPPA KUSHAPPNAVAR
@ KUSHNAPPANAVAR,
AGE: 22 YEARS, OCC: COOLIE,
R/O BUDIGOPPA, TQ: SAUNDATTI,
DIST: BELAGAVI.
...PETITIONER
(BY SRI SHRIKANT T. PATIL,
& ROHIT S. PATIL, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA,
R/BY SAUNDATTI POLICE STATION,
R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
AT DHARWAD.
Digitally signed
by SAROJA 2. SHEKHAR ADIVEPPA KURUBAGATTI,
HANGARAKI
Location: HIGH AGE: 29 YEARS, OCC: DRIVER,
COURT OF R/O SOGAL, TQ: SAUNDATTI,
KARNATAKA
DHARWAD DIST: BELAGAVI-591111.
BENCH ...RESPONDENTS
DHARWAD (BY SRI JAIRAM SIDDI, HCGP FOR R1;
R-2 SERVED)
THIS CRIMINAL PETITION IS FILED U/SEC. 439 OF CR.P.C.
SEEKING THAT THE PETITIONER HEREIN BE ENLARGED ON BAIL IN
SAUNDATTI PS CRIME NO. 186/2023 WHICH IS REGISTERED AS
SPECIAL CASE NO. 314/2023 PENDING ON THE FILE OF ADDL.
DISTRICT AND SESSIONS JUDGE FTSC-I BELAGAVI FOR THE
OFFENCES PUNISHABLE U/SEC. 363, 376(1), 376(2)(N) OF IPC, SEC.
4 AND 6 OF POCSCO ACT AND SEC. 3(1)(w)(i), 3(2)(va), 3(2)(v) OF
SC/ST POA AMENDMENT ACT 2015 ON ANY OTHER TERMS AND
CONDITIONS.
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NC: 2024:KHC-D:5745
CRL.P No. 100501 of 2024
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The present petition is filed by petitioner/accused under Section 439 of Cr.P.C. for grant of regular bail in connection with the case registered in Saundatti P.S. Crime No.186/2023.
2. Parties to the petition are referred with their ranks as assigned in the trial Court for the sake of convenience.
3. Heard the arguments of both sides.
4. After hearing the arguments of both sides and on perusal of charge sheet materials, the following points arise for consideration:
(i) Whether the accused is entitled for grant of regular bail in terms of Section 439 of Cr.P.C.?
(ii) What order?-3-
NC: 2024:KHC-D:5745 CRL.P No. 100501 of 2024
5. On careful perusal of charge sheet materials, it would go to show that on the basis of missing complaint filed by Shekhar S/o Adaveppa Kurubagatti brother of victim, case was registered in Saundatti P.S. Crime No.186/2023 for the offence punishable under Section 363 of IPC. The accused was arrested during the course of investigation and since then he is in judicial custody. The complaint allegations are to the effect that on 17.05.2023 at 6.00 a.m. while he was on work at Vijayapura, his mother Huvakka Kurubagatti called him over phone and informed that his sister victim who was sleeping in the house was found missing and in spite of search, she was not traceable. On receipt of such phone call, complainant immediately came back to the house at 4.00 p.m. and on enquiry with his mother Huvakka Kurubagatti, she revealed that after dinner all of them were sleeping in the house and when she woke up at 1.00 a.m. for attending nature call, found victim who was sleeping by the side of her was missing. She immediately informed to the brother of complainant and all of them searched for victim and -4- NC: 2024:KHC-D:5745 CRL.P No. 100501 of 2024 contacted the relatives. However, the whereabouts of the victim were not traced. Therefore, the brother of victim filed missing complaint. The Investigating Officer on receipt of the said missing complaint, carried out investigation and on completion of investigation filed the charge sheet.
6. Learned High Court Government Pleader filed detailed objection opposing the bail petition of the accused on the ground that there are sufficient prima facie material evidence against the accused for the alleged offence against him. The victim was minor as on the date of incident and the consent of a minor is no consent at all in the eye of law. If the accused is released on bail, he may influence the minor victim not to speak against him and tamper the prosecution witnesses. Therefore, prayed for rejection of bail petition.
7. The charge sheet materials would go to show that on the basis of missing complaint filed by the brother of victim, case was registered against unknown accused. -5-
NC: 2024:KHC-D:5745 CRL.P No. 100501 of 2024 The accused was arrested during the course of investigation on 24.05.2023 and since then he is in judicial custody. The Investigating Officer having completed the investigation filed charge sheet against the accused for the offences punishable under Sections 363, 376(1), 376(2)(n) of IPC and Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act' for brevity) and Sections 3(1)(w)(i), 3(2)(va), 3(2)(v) of SC and ST (Prevention of Atrocities) Act, 1989.
8. The charge sheet material would go to show that the victim and accused both came from Harikandi village to Saundatti on 21.05.2023 for getting registered marriage. In that connection accused contacted his uncle Mallikarjun for performing their registered marriage. However, the uncle of accused Mallikarjun stated to accused that case is already registered in the police station and by saying so brought both victim and accused to the police station and the victim was placed in Women -6- NC: 2024:KHC-D:5745 CRL.P No. 100501 of 2024 Counseling Center. The victim has given her statement before the PSI, Saundatti on 23.05.2023, wherein she has stated that she is aged 16 years 10 months. When she had come to Budigoppa village, the parental house of her mother for Moharram festival she came in contact with accused and they were in love with each other, further both of them were talking with each other over phone. The victim was in love with accused was known to her family members and because of it her mobile was taken away by the family members. The victim in spite of that was in contact with accused through mobile phone of her brother. On 16.05.2023 victim from the mobile of her brother talked to accused and stated that her family members are looking for alliance and in the process of performing her marriage. Accused informed the victim that he will come to her house in the night and convinced her to accompany him for getting the marriage. On 17.05.2023 at about 1.00 a.m. accused came over his motorcycle and victim by noticing all the family members are sleeping in the house accompanied the accused and they went to Ramdurg. -7-
NC: 2024:KHC-D:5745 CRL.P No. 100501 of 2024 Accused parked the motorcycle in front of the house of his paternal uncle Yallappa Badennavar, thereafter both accused and victim proceeded to Harikandi village on 18.05.2023, the victim was kept in a shed. On the same day at about 10.00 p.m. in spite of resistance of victim, accused has committed penetrative sexual assault against her will and he continued to cause sexual assault for three days. On 21.05.2023 accused brought the victim to Saundatti on the pretext that his uncle will perform their marriage. After alighting from the bus in Saundatti bus stand accused contacted his uncle Mallikarjun who brought accused and victim to the police station.
9. The statement of victim under Section 164 of Cr.P.C. is also recorded before the Magistrate, Saundatti on 26.05.2023, wherein the victim has reiterated the facts stated in her statement under Section 161 of Cr.P.C. Looking to both statement of victim, it would go to show that victim and accused were in love with each other. The date of birth of victim in SSLC marks card is recorded as -8- NC: 2024:KHC-D:5745 CRL.P No. 100501 of 2024 03.07.2006 and the complaint is filed on 19.05.2023. Thus, the victim as on the date of filing the complaint was of 17 years two months. The statement of victim under Section 161 of Cr.P.C. given before the Investigating Officer and also her 164 statement given before the Magistrate would go to show that she has voluntarily accompanied the accused and without there being any resistance she went on his motorcycle and stayed with accused in the shed at Harikandi village. The statement of victim is consistent regarding she being in love with accused and they were intending to marry.
10. The medical report of the victim would go to show that there are no signs suggestive of involvement in forceful sexual intercourse. Seminal stain, blood stain and skin tissue was not detected in any of the above mentioned articles as per the final opinion recorded by the doctor on the basis of FSL report. There were also no any external injuries on the victim. It is no doubt true that the victim was below the age of 18 years and as on the date -9- NC: 2024:KHC-D:5745 CRL.P No. 100501 of 2024 of filing the complaint she was minor. Whether the consent of victim become inconsequential who is at the verge of attaining the age of majority in a case of consensual sex on account of love with each other is a matter that is required to be considered.
11. Learned counsel for the petitioner relied on the judgment of Hon'ble Bombay High Court in Sunil Mahadev Patil vs. The State of Maharashtra in Bail Application No.1036/2015 dated 03.08.2015, wherein Hon'ble Bombay High Court was considering the bail application of accused in case of victim falling in love with accused and by taking over all consideration in deciding such bail application laid down the following factors that are required to be considered at paragraph No.12.
"When a boy and a minor girl are in love with each other and chose to live together without consent of their parents, then the following factors are to be considered:
(i) What is the age of the prosecutrix, who is minor.
(ii) Whether the act is violent or not.
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NC: 2024:KHC-D:5745 CRL.P No. 100501 of 2024
(iii) Whether there are antecedents or not.
(iv) Whether the offender is capable of repeating the Act or not.
(v) Whether there is likelihood of threats or intimidation, if at all the boy is released.
(vi) Whether any chance of tampering with the material witnesses when their statements are recorded.
(vii) It is also to be taken into account in such cases that a boy in his early 20's deserves to get employment and to plan, stabilize and secure his future."
The Hon'ble Bombay High Court having taken note of all the factors into consideration, granted bail to the accused.
12. Learned counsel for the petitioner relied on the Co-ordinate Bench judgment of this Court in Madhu V. vs. State of Karnataka in Criminal Petition No.7087/2017 dated 25.10.2017 wherein the aforementioned judgment of Hon'ble Bombay High Court in Sunil Mahadev Patil was taken into consideration and bail has been granted.
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NC: 2024:KHC-D:5745 CRL.P No. 100501 of 2024 Learned counsel for the petitioner also relied on another Co-ordinate Bench judgment of Hon'ble Bombay High Court in Vinayak Dnyandev Gore vs. State of Maharashtra reported in 2022 SCC Online Bom 3646, wherein also the aforementioned judgment in Sunil Mahadev Patil was taken into consideration and has granted bail where the victim and accused were in love and their intention can be gathered from material evidence placed on record. Learned counsel for the petitioner also relied on Co-ordinate Bench judgment of Hon'ble Delhi High Court in Mahesh Kumar vs. State (NCT of Delhi) reported in 2023 SCC Online Del 2634, wherein it has been observed and held at paragraph No.9 as under:
"9. This Court notes that the prosecutrix has been consistent in her statement under Section 161 and 164 Cr. P.C. as well as before the Court and supports the man she loves, blissfully unaware that the law in this country does not support such love stories. The main character i.e., the present accused is not a criminal, but was merely in love and at the instance of her lady love, being unaware of the nitty-gritties of law, had taken her to a place
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NC: 2024:KHC-D:5745 CRL.P No. 100501 of 2024 which was 2200 kms. away from Delhi to lead a peaceful life. The criminal intent of any kind from the record is completely missing as neither of the characters of the story i.e. prosecutrix and accused had switched off their mobile phones so that their location may not be available to the police or to their family. The police was able to locate them on the basis of their mobile phone location only. They had found that accused was working in a salon and earning for himself and the prosecutrix and she was seven weeks pregnant which was also at her own insistence. The prosecutrix before this Court as well as before the learned Trial Court insisted that she has turned 18 and she and accused are to get married to within a month."
The Hon'ble Delhi High Court having taken note of situation of the case as referred above granted bail. The Hon'ble Delhi High Court has taken similar view in its earlier judgment also in Ajay Kumar vs. State (NCT of Delhi) reported in 2022 SCC Online Del 3705. Learned counsel for the petitioner also places reliance on the latest judgment of Hon'ble Bombay High Court in Nitin Damodar Dhaberao vs. State of Maharashtra in Bail
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NC: 2024:KHC-D:5745 CRL.P No. 100501 of 2024 Application (BA) No.718/2023 dated 05.01.2024, wherein the Hon'ble Bombay High Court having found that victim had joined the company of accused and also having admitted her love relationship with accused granted bail.
13. In the present case also, the statement of victim recorded under Section 161 of Cr.P.C. before the Investigating Officer and also her 164 statement given before the Magistrate, the victim has reiterated her stand that she is in love with accused and they intended to marry, it is because of this reason only both victim and accused came from Harikandi village to Saundatti bus stand to take assistance of the uncle of accused for performing their registered marriage. However, the missing case of victim was already registered in Saundatti Police Station. Therefore, the uncle of accused brought both of them to police station. Looking to the facts and circumstances narrated by victim herself, it is evident that victim accompanied on her own with accused, since she was in love with accused and had physical contact with
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NC: 2024:KHC-D:5745 CRL.P No. 100501 of 2024 accused on her own accord. There was no any compulsion of accused for leaving the house and she voluntarily accompanied the accused as she was in love with accused. Therefore, in view of the principles enunciated in the aforementioned judgments and the facts involved in the present case as narrated above, it is evident that the victim is on the verge of attaining her age of majority and she was in love with accused. There are no any allegations against accused that he is having antecedents of criminal background and he is having any otherwise intention against victim. Therefore, under these circumstances, accused is entitled for bail. Consequently, proceed to pass the following:
ORDER The bail petition filed by petitioner/accused under Section 439 of Cr.P.C. is hereby allowed.
Accused is ordered to be released on bail on his executing personal bond and surety bond for a sum of Rs.1,00,000/- with one surety for the likesum amount to
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NC: 2024:KHC-D:5745 CRL.P No. 100501 of 2024 the satisfaction of the trial Court, subject to following conditions:
(i) Accused shall not leave the jurisdiction of trial Court without its prior permission.
(ii) Accused shall not tamper the prosecution witnesses in any manner.
(iii) Accused shall appear before trial Court on every date of hearing, unless he is otherwise exempted by the order of trial Court.
Sd/-
JUDGE SH CT:GSM List No.: 1 Sl No.: 12