Karnataka High Court
Sri Pandu Naik S/O Laxmana Naik vs State Of Karnataka on 8 November, 2023
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NC: 2023:KHC-D:13029
CRL.P No. 102472 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.RACHAIAH
CRIMINAL PETITION NO. 102472 OF 2023
BETWEEN:
SRI. PANDU NAIK S/O LAXMANA NAIK
AGE: 22 YEARS, OCC: AGRICULTURIST,
R/O: DUPADAHALLI THANDA,
TQ: KOTTUR, DIST: VIJAYANAGAR-583134
...PETITIONER
(BY SRI. SRINAND A PACHHAPURE, ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH KOTTUR POLICE STATION
NOW REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
AT DHARWAD-580011.
2. SRI. MAHESHNAIK S/O LAKSHMANANAIK
AGE: 42 YEARS, OCC: DRIVER,
R/O: DUPADAHALLI THANDA,
TQ: KOTTUR, DIST: VIJAYANAGAR-583134.
Digitally
signed by V
...RESPONDENTS
VN
N BADIGER
BADIGER Date:
(BY SRI. PRAVEENA Y.DEVAREDDIYAVARA, HCGP FOR R1;
2023.11.16
10:38:10
+0530 R2-NOTICE SERVED)
THIS CRIMINAL PETITION IS FILED U/SEC. 439 OF CR.P.C.
SEEKING TO GRANT BAIL TO THE PETITIONER/ACCUSED CRIME
NO.66/2023 REGISTERED FOR THE OFFENCES P/U/S 363, 366
AND 376(2)(n) OF IPC, SEC. 4(1) AND 6 OF POCSO ACT AND SEC.
9 OF PROHIBITION OF CHILD MARRIAGE ACT, 2006, BY THE
RESPONDENT KOTTUR POLICE STATION, PENDING ON THE FILE
OF ADDL. DISTRICT AND SESSIONS JUDGE- FTSC-I (RAPE AND
POCSO CASES), BALLARI.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2023:KHC-D:13029
CRL.P No. 102472 of 2023
ORDER
Heard Sri Srinand A. Pachhapure, learned counsel for the petitioner and Sri Praveena Y.Devareddiyavara, learned High Court Government Pleader for the respondent-State.
2. The petitioner is the sole accused in Crime No.66/2023 of Kottur Police Station for the offences punishable under Sections 363, 366, 376(2)(n) of Indian Penal Code (for short "IPC") and Sections 4(1) and 6 of POCSO Act, 2012 and Section 9 of the Prohibition of Child Marriage Act 2006.
3. Brief facts of the case:-
It is the case of the prosecution that the petitioner and the victim are the residents of same village. It is said that the victim was sleeping along with her grand mother outside the house on 15.04.2023 and grand mother along with victim had been out for defecation early in the morning at about 00.15 hours. The victim found missing -3- NC: 2023:KHC-D:13029 CRL.P No. 102472 of 2023 from there. The grand mother informed the said fact to the family members and the family members have searched her whereabouts, however, they could not trace her whereabouts. Later, the complainant being a father of the victim had lodged a complaint about missing of his daughter on 16.04.2023. The jurisdictional police have registered a case in Crime No.66/2023 against the unknown persons and conducted the investigation. During the investigation, they found that the petitioner stated to have abducted the victim and said to have married her knowingly that she was a minor and committed sexual intercourse with her. On 22.04.2023, the petitioner was arrested and the victim was rescued. On the same day, the statement under Section 164 of Cr.P.C. was recorded by the jurisdictional Magistrate. The petitioner is in judicial custody since 22.04.2023.
4. It is the submission of the learned counsel for the petitioner that the petitioner and the victim were loving each other and they have decided to marry each -4- NC: 2023:KHC-D:13029 CRL.P No. 102472 of 2023 other. The victim eloped along with the petitioner and stayed at Bangalore for 7 days and there, both have married in the temple. Thereafter, the alleged rape said to have been committed by the petitioner.
5. It is further submitted that as per the averments of the complaint, the offence of rape cannot be made out against the petitioner for the reason that there is some exception to Section 375 of IPC. Even though the victim has recorded the statement and stated that she was forcefully abducted and the petitioner committed rape against her, which is an afterthought. The petitioner is innocent of the alleged offences and he has been falsely implicated in this case. Therefore, the petitioner may be enlarged on bail by imposing suitable conditions. Making such submission, learned counsel for the petitioner prays to allow the petition.
6. Per contra, Shri Praveena Y. Devareddiyavara, the learned HCGP vehemently opposed the bail petition by filing objection statement and submitted that the victim is -5- NC: 2023:KHC-D:13029 CRL.P No. 102472 of 2023 aged about 17 years as on the date of the alleged incident. She was abducted and she was subjected to rape by the petitioner. The alleged offences are heinous in nature and the petitioner is not entitled for bail.
7. It is further submitted that in case, if the petitioner is enlarged on bail, there may be chances of committing similar offences and there may be chances of fleeing away from justice. Making such submission, the learned HCGP prays to dismiss petition.
8. Having heard the learned counsel for the respective parties and also perused the statement recorded under Section 164 of Cr.P.C. of the victim, it is clear that the petitioner married the victim. After the marriage, he stated to have committed sexual intercourse. Now, it is relevant to take note of Section 375 Exception (2) of IPC which reads thus:-
"375. Rape.-
**** **** **** -6- NC: 2023:KHC-D:13029 CRL.P No. 102472 of 2023 **** Exception 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
9. On reading of the above said provision, it makes it clear that the sexual intercourse by man with his own wife and the wife not being under 15 years of age does not amounts to rape and moreover, in the present case, the victim voluntary stated before the jurisdictional Magistrate that the petitioner married her in the temple. Therefore, it is appropriate to grant bail by considering the statement of the victim.
10. In the light of observation made above, I proceed to pass the following:-
ORDER The petition is allowed.
The petitioner is ordered to be enlarged on bail in Crime No.66/2023 of Kottur Police Station on executing a personal bond in a sum of Rs.1,00,000/- (Rupees One lakh -7- NC: 2023:KHC-D:13029 CRL.P No. 102472 of 2023 only) with one surety for the likesum to the satisfaction of the Trial Court, subject to the following conditions:
i) The petitioner shall not threaten or tamper the prosecution witnesses nor hamper the proceedings of the Court.
ii) The petitioner shall appear before the Trial Court on all dates of hearing without fail.
In case, if the petitioner violates any of the bail conditions as stated above, the prosecution will be at liberty to seek for cancellation of bail.
Sd/-
JUDGE VMB List No.: 1 Sl No.: 20