Karnataka High Court
Shri. Maruti Shivappa Patil vs State Of Karnatka on 26 September, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.P No. 102517 of 2022
c/w CRL.P No. 102518 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF SEPTEMBER 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 102517 OF 2022
c/w CRIMINAL PETITION NO. 102518 OF 2022
IN CRL.P. NO.102517/2022
BETWEEN:
SHRI. MARUTI SHIVAPPA PATIL
AGE. 43 YEARS, OCC. AGRICULTURE,
R/O. BAVACHI, TQ. RAIBAG,
DIST. BELAGAVI.-591317
...PETITIONER
(BY SRI. M B GUNDAWADE, ADVOCATE)
AND:
1. STATE OF KARNATKA
THROUGH STATE PUBLIC PROSECUTOR
HIGH COURT DHARWAD -590011
BY RAIBAG POLICE STATION
2. SHRI LAXMAN MARUTI GONGADE
AGE. 21 YEARS, OCC. AGRICULTURE,
R/O. NAGARAL, TQ. RAIBAG,
DIST. BELAGAVI.-591317
...RESPONDENTS
(BY SRI. PRASHANTH V. MOGALI, HCGP FOR R1.
R-2 SERVED.)
THIS CRIMINAL PETITION IS FILED U/SEC. 438 OF CR.P.C.
SEEKING THAT THE PETITIONER/ACCUSED NO.3 MAY BE
GRANTED AN ANTICIPATORY BAIL IN RAIBAG POLICE STATION IN
ITS CRIME NO.91/2022 FOR THE OFFENCE PUNISHABLE U/SEC.
366(A), 341, 342, 376(2)(N), 506, 212 R/W 34 OF IPC AND SEC.
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CRL.P No. 102517 of 2022
c/w CRL.P No. 102518 of 2022
4 AND 6 OF POCSO 2012 AND ORDER TO BE RELEASED ON BAIL
ON HIS ARREST.
IN Crl.P No.102518 OF 2022
BETWEEN:
SHRI. MAHANTESH BALAPPA VANTAMURE
AGE. 27 YEARS, OCC. AGRICULTURE,
R/O. HULYALKERI,TQ. RAIBAG,
DIST. BELAGAVI.591317
...PETITIONER
(BY SRI. M B GUNDAWADE, ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH STATE PUBLIC PROSECUTOR
HIGH COURT DHARWAD 590011
BY RAIBAG POLICE STATION
2. SHRI. LAXMAN MARUTI GONGADE
AGE. 21 YEARS, OCC. AGRICULTURE,
R/O. NAGARAL, TQ. RAIBAG,
DIST. BELAGAVI.591317
...RESPONDENTS
(BY SRI. PRASHANTH V. MOGALI, HCGP FOR R1.
R-2 SERVED.)
THIS CRIMINAL PETITION IS FILED U/SEC. 439 OF CR.P.C.
SEEKING THAT THE PETITIONER/ACCUSED NO.1 HAS FILED BAIL
APPLICATION U/SEC. 439 OF CR.P.C. SEEKING HIS RELEASE ON
BAIL IN RAIBAG POLICE STATION ITS CRIME NO.91/2022 FOR
THE OFFENCE PUNISHABLE U/SEC. 366(A), 341, 342, 376 (2)(N),
506, 212 R/W 34 OF IPC AND SEC. 4 AND 6 OF POCSO 2012. AND
ORDER TO BE RELEASED ON BAIL ON HIS ARREST.
THESE CRIMINAL PETITIONS COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.P No. 102517 of 2022
c/w CRL.P No. 102518 of 2022
ORDER
Criminal Petition No.102517/2022 is filed by accused No.3 under Section 438 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) and Criminal Petition No.102518/2022 is filed by accused No.1 under Section 439 of Cr.P.C. Both the petitions are filed in respect of Crime No.91/2022 of Raibag Police Station for the offences punishable under Sections 366A, 341, 342, 376(2)(n), 506 and 212 read with Section 34 of the Indian Penal Code (hereinafter referred to as 'IPC', for brevity) and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012(hereinafter referred to as the 'POCSO Act', for brevity).
2. The case of the prosecution is that, one Laxman Maaruti Gongade has filed complaint stating that he is shepherd by profession. That on 10.04.2022 at about 6:00pm, when he, his mother, -4- CRL.P No. 102517 of 2022 c/w CRL.P No. 102518 of 2022 and his sister were sitting in their house, at that time, his sister-victim girl aged 13 years 10 months had gone outside the house and she did not return to the house and therefore, they searched for her and did not trace her. It is also stated that their neighbour accused No.1-Mahantesh was also not in the house. The said complaint came to be registered in Crime No.91/2022 for an offence under Section 363 of IPC against accused No.1. The police after completing investigation, filed charge sheet against accused Nos.1 to 3 for the aforesaid offences. Accused No.1 came to be arrested on 18.04.2022 and he is in judicial custody. Accused No.1 filed Crl.Misc.No.1029/2022 seeking bail and the same came to be rejected by the learned Additional District and Sessions Judge and FTSC-1, Belagavi, by order dated 17.08.2022. Therefore, accused No.1 is before this Court.
-5-CRL.P No. 102517 of 2022 c/w CRL.P No. 102518 of 2022
Accused No.3 apprehending his arrest, filed Crl.Misc.No.1030/2022 seeking anticipatory bail and the same came to be rejected by the learned Additional District and Sessions Judge, FTSC-1, Belagavi, by order dated 17.08.2022. Therefore, accused No.3 is before this Court seeking anticipatory bail.
3. Heard the arguments of the learned counsel appearing for the petitioners and the learned High Court Government Pleader for respondent No.1- State. In spite of service of notice, respondent No.2/complainat remained absent and unrepresented.
4. Learned counsel for the petitioners would contend that the complaint came to be filed by the brother of the victim girl against accused No.1 suspecting that he might have kidnapped the victim girl as he was closely acquainted with her. It is his further submission that, there are 3 statements of -6- CRL.P No. 102517 of 2022 c/w CRL.P No. 102518 of 2022 the victim girl and all are in her hand writing and they are dated 17.04.2022, 18.04.2022 and 04.05.2022. It is his further submission that, in her first statement, there is no allegation of any forcible sexual intercourse but there is only allegation of attempt to commit sexual intercourse. In the second statement there is allegation of sexual intercourse in the house of accused No.3 by accused No.1. In her 3 r d statement, there is allegation that accused No.1 took the victim girl to a house at Sambra and made an attempt to have sexual intercourse with her and sexual intercourse by accused No.1 on her in the house of accused No.3. It is his further submission that the Doctor, who examined her, has noted that hymen is not in tact and there is posterior old tear present and vaginal swab negative for gonococci. It is his further submission that the victim girl in her statement recorded under Section 164 of Cr.P.C. has made allegation against this petitioner/accused No.1 that -7- CRL.P No. 102517 of 2022 c/w CRL.P No. 102518 of 2022 he made an attempt to commit sexual intercourse on her on 11.04.2021 and forcibly had sexual intercourse on her in the house of accused No.3 for two times. It is his further submission that as charge sheet is filed, accused No.1 is not required for custodial interrogation. The accusation against accused No.3 is that, he gave shelter to accused No.1 and the victim girl in his house and as per the victim's statement they were sleeping separately and except this there is no overt act against this accused No.3. With this, he prayed to allow the petitions.
5. Per contra, learned High Court Government Pleader would contend that, the name of accused No.1 is specifically stated in the complaint. The victim girl in her statements has specifically stated that she was kidnapped by accused No.1 in cruiser vehicle and on the next day morning he took her to the house of accused No.3 and had forcible sexual intercourse on her in the said house for two times. -8- CRL.P No. 102517 of 2022 c/w CRL.P No. 102518 of 2022 It is his further submission that the statement of the victim girl has been recorded under Section 164 of Cr.P.C. wherein she has stated the overt act of accused No.1. It is his further submission that, the Doctor, who conducted examination of the victim girl, has noted that hymen is not intact and her dental age is between 16 to 17 years and skeletal age is more than 14 years and less than 16 years and her age as per school records, as on the date of the alleged incident, is 13 years 6 months. It is his further submission that, on perusal of the entire charge sheet material, there is prima facie case against accused Nos.1 and 3 for the offences alleged against them. If accused Nos.1 and 3 are granted bail/anticipatory bail, they will threaten the complainant and other prosecution witnesses. With this, he prayed to reject the petitions.
6. Having regard to the submission made by the learned counsel for the petitioners and the -9- CRL.P No. 102517 of 2022 c/w CRL.P No. 102518 of 2022 learned High Court Government Pleader, this Court has gone through the charge sheet papers.
7. The date of birth of the victim girl as per the school records is 01.06.2008. As per the Doctor, the dental age of the victim girl is between 16 to 17 yrs and skeletal age is more than 14 years and less than 16 years. Accused No.1 is closely acquainted with the victim girl. The age of the victim girl was 13 yeas 6 months as on the date of the alleged incident i.e. 10.04.2022. As per the statement of the victim girl, accused No.1 took her in the cruiser to Sambra, Belagavi and took her to a room where he attempted to commit sexual intercourse by putting his arms and legs on her and she came and slept in the cruiser and on the next day, accused No.1 took her in the said vehicle to the house of accused No.3 at Baavachi village and kept her there till 17.04.2022 and had sexual intercourse on her two times. The victim girl in her statement recorded
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CRL.P No. 102517 of 2022 c/w CRL.P No. 102518 of 2022 under Section 164 of Cr.P.C. has specifically stated the above said acts of accused No.1. The doctor, who examined the victim girl has stated that the hymen of the victim girl is not intact. On perusal of the charge sheet material, there is prima facie case against accused No.1 for the offences alleged against him. Therefore, accused No.1 is not entitled for grant of bail.
8. The accusation against accused No.3 is that, he gave shelter to accused No.1 and the victim girl in his house from 11.04.2022 till 17.04.2022. In the statement, it is stated that the victim and the accused were sleeping separately in the house of accused No.3 but during night hours accused No.1 had sexual intercourse on the victim girl. The only accusation against accused No.3 is that he gave shelter to accused No.1 and the victim girl in his house and facilitated accused No.1 to commit the alleged offence. There are no overt act alleged
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CRL.P No. 102517 of 2022 c/w CRL.P No. 102518 of 2022 against accused No.3 except he giving shelter to accused No.1 and the victim girl in his house. Therefore, accused No.3 is entitled for grant of anticipatory bail with conditions. Hence, I proceed to pass the following:
ORDER Criminal Petition No.102518/2022 filed by accused No.1 under Section 439 of Cr.P.C. is rejected. Criminal Petition No.102517/2022 filed by accused No.3 under Section 438 of Cr.P.C. is allowed. Consequently, the petitioner/accused No.3 is ordered to be released on bail in the event of his arrest in Crime No.91/2022 of Raibag Police Station, subject to the following conditions:
i. The petitioner/accused No.3 shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with one surety for the likesum to the satisfaction of the jurisdictional Court.
- 12 -CRL.P No. 102517 of 2022 c/w CRL.P No. 102518 of 2022
ii. The petitioner/accused No.3 shall not indulge in tampering the prosecution witnesses.
iii. The petitioner/accused No.3 shall attend the Court on all the dates of hearing, unless exempted, and co-operate in speedy disposal of the case.
SD/-
JUDGE kmv