Karnataka High Court
Chinnu Alias Chennakeshwa Pujar vs State Of Karnataka on 22 November, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 100347 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF NOVEMBER 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 100347 OF 2022
BETWEEN:
CHINNU ALIAS CHENNAKESHWA PUJAR
S/O TULASAPPA PUJAR
AGE.18 YEARS, OCC.STUDENT,
R/O.LAXMISINGHAKERI
NEAR SIDDRAMESHWAR GUDI
DHARWAD-580001
...APPELLANT
(BY SRI. R M JAVED, ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH TOWN PS, DHARWAD,
REP BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BENCH AT DHARWAD-581105
2. RAVINDRA H DODDAMANI
AGE.47 YEARS, OCC.SECURITY GUARD
R/O.MOREY PLOT, MAYUR COLONY,
HONGIRAN BUILDING,
H.NO.10, DHARWAD-580007
...RESPONDENTS
(BY SRI. PRASHANTH V.MOGALI, HCGP FOR RESPONDENT NO.1
RESPONDENT NO.2 SERVED AND WAS PHYSICALLY PRESENT ON
14.10.2022.)
THIS CRIMINAL APPEAL IS FILED U/S 14 A(2) OF THE SC
AND ST (POA) ACT, 1989, SEEKING TO ENLARGE THE
PETITIONER/CCWL NO.3 ON BAIL IN CONNECTION WITH
DHARWAD TOWN P.S. CRIME NO.222/2021 (NOW
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CRL.A No. 100347 of 2022
SPL.SC.NO.28/2022) FOR THE ALLEGED OFFENCES PUNISHABLE
U/S 354, 354(D), 363, 366(A), 376(D), 34 OF IPC AND SECTION
4, 6, 8, 14 OF PROTECTION OF CHILDREN FROM SEXUAL
OFFENCES ACT AND SECTION 3(2)(va) OF SC/ST (POA)
AMENDMENT ORDINANCE 2014 AND SECTION 3(1)(w) OF SC/ST
ACt AND SECTION 67(B) OF INFORMATION TECHNOLOGY ACT
2008 PENDING FILE BEFORE II ADDITIONAL DISTRICT AND
SESSIONS AND SPL.JUDGE, DHARWAD ON SUCH TERMS AND
CONDITIONS THAT THIS HON BLE COURT MAY BE PLEASE TO
IMPOSE.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant (CCWL-3) challenging the order dated 03.06.2022 passed in Spl.S.C. No.28/2022 whereunder the bail application filed by the appellant under Section 439 of Cr.P.C. in respect of Dharwad Town Police Station Crime No.222/2021 registered for the offences punishable under Sections 354, 354D, 363, 366A, 376D and506 read with Section 34 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity), Sections 4, 6 , 8 and 12 of the Protection of Children from Sexual Offences Act, 2012(hereinafter referred to as 'POCSO Act', for brevity), Section 67B of the -3- CRL.A No. 100347 of 2022 Information Technology Act, 2008(hereinafter referred to as 'IT Act', for brevity) and Sections 3(1)(w) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'SC & ST Act', for brevity) came to be dismissed.
2. Heard the learned counsel for the appellant and the learned High Court Government Pleader for respondent No.1/State. Respondent No.2 had physically appeared before this Court on 14.10.2022 and prayed not to grant bail to the appellant. The victim girl was also present along with respondent No.2 and she had filed a representation praying not to grant bail to the appellant.
3. The case of the prosecution is that, the victim girl has filed the complaint against 7 persons on 25.12.2021 stating that while she was pursuing her PUC II year, a boy by name Mohan, who was studying in SSLC in the same school, was following -4- CRL.A No. 100347 of 2022 her and was proposing her and was threatening her. It is further stated by her that, Mohan came to her college and forced her to come with him and he took her in bus till Srinagar circle. There, one boy by name Manoj along with other boy Basavaraj Bandiwaddar were waiting on Hero Honda bike. Then Basavaraj called over phone to Chinnu @ Chennakeshwa (appellant) to Srinagar circle and all of them forcibly took her on bike behind Om temple near KUD where the plants trees are in large numbers and, there the accused Mohan forcibly committed sexual assault on her and thereafter, accused Basavaraj, Chinnu(appellant) committed forcible sexual assault on her and the whole incident was recorded in the mobile phone of Basavaraj. Thereafter, after one week, accused Mohan came to her college and forced her to come along with him, though she refused, she was threatened that the earlier video will get viral if she refuses his demand. Accused Basavaraj got his bike and they forcefully -5- CRL.A No. 100347 of 2022 took her to an isolated place near Suryanagar and other accused Chinnu(appellant), Manoj, Ashish, Punit came and they also committed sexual assault on her. The said complaint filed by her came to be registered in Crime No.222/2021 by Dharwad Town Police Station for the offences punishable under Sections 354, 354D, 363, 366A, 376D read with Section 34 of IPC and Sections 4, 6, 8 and 14 of POCSO Act. The appellant is arrayed as accused No.3. Since the appellant is juvenile, he was sent to Juvenile Home as CCWL-3. The Police after completing investigation laid charge sheet against 8 persons for the offences punishable under Sections 354, 354D, 363, 366A 376D read with Section 34 of IPC, Sections 4, 6, 8 and 14 of POCSO Act, Sections 3(1)(w) and 3(2)(va) of SC & ST Act and Section 67B of IT Act. Now the said case is pending on the file of the learned II Additional District and Sessions and Special Judge, Dharwad, in Spl.S.C. No.28/2022. -6- CRL.A No. 100347 of 2022
The appellant moved bail application before the Children's Court in Spl.SC No.28/2022 which came to be rejected by order dated 03.06.2022, the appellant has challenged the said order in the instant appeal.
4. Learned counsel for the appellant would contend that, the victim girl, as per the averments of the complaint, she is aged 17 years and she belongs to SC and she is studying in PUC II year Arts. It is his further submission that, on looking to the entire complaint, the dates of the alleged incidents are not forthcoming but in the FIR, it is mentioned that the alleged incidents are between 01.08.2021 to 31.08.2021. The statement of the victim girl has been recorded under Section 164 of Cr.P.C. on 27.12.2021 wherein she has stated that, Mohan took her stating to go to temple. It is his further submission that, the D octor who examined the victim girl has noted the history given by the victim girl wherein she has alleged that, she was -7- CRL.A No. 100347 of 2022 called to go to Nuggikeri temple, which is contradictory to the averments of the complaint and the statement recorded under Section 164 Cr.P.C. In the said history she has alleged that, she is sexually assaulted by 6 persons in Srinagar. It is his further submission that, the statement of one Akshata has been recorded under Section 164 of Cr.P.C. wherein she has stated that the victim girl was taken forcibly by 3 persons when she was with the victim girl in the canteen and she has not made any complaint to the College Authorities or to the Police. It is his further submission that, she has named all the boys, as if she knows them, in her complaint and the statement. It is his further submission that, as the appellant and others have attained the age of 18 years, the Superintendent, Observation Home, has sent a letter to the Children's Court to transfer them from the Observation Home. It is his further submission that the Probation Officer has not submitted any social -8- CRL.A No. 100347 of 2022 information report as required under Section 13(1)(ii) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "JJ Act', for brevity). He places reliance on the decision of the Madhya Pradesh High Court between A s/o B and The State of Madhya Prad esh and another in Criminal Revision No.2865/2022 decided on 29.10.2022 that the Probation Officer has to submit a social investigation report within a period of two weeks from when a child is apprehended or brought to the Board, containing information regarding the antecedents and family background of the child and other material circumstances likely to be of assistance to the Board for making inquiry. It is his further submission that, as charge sheet is filed, the appellant is not required for custodial interrogation. With this, he prayed to allow the appeal and set aside by order passed by the Children's Court and grant bail to the appellant.
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5. Per contra, learned High Court Government Pleader would contend that, the statement of the victim girl has been recorded under Section 164 of Cr.P.C. wherein she has specifically revealed the gang rape by this appellant and others. The Doctor, who examined the victim girl has noted that her hymen is absent and she is of the age between 17 to 19 years. The statement of one girl by name Aklshatha has been recorded and she is cited as CW- 34 who has seen the 3 boys taking forcefully the victim girl from the college canteen. CW-33 is one of the eyewitnesses who has seen the accused persons committing forcible sexual intercourse on the victim girl one after the other. It is his further submission that, charge sheet material show prima facie case against the appellant for the offences alleged against him. If the appellant is granted bail, there is threat to the complainant, victim girl and other prosecution witnesses. It is his further submission that, even, there is threat to the
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CRL.A No. 100347 of 2022 appellant if he is released on bail. As he is involved in gang rape, his life is at danger at the hands of the public. It is his further submission that, it is safe to keep the appellant in custody to protect his life. With this, he prayed to dismiss the appeal.
6. Having regard to the submission made by the learned counsel for the appellant and the learned High Court Government Pleader, this Court has gone through the charge sheet records. This Court has also taken into consideration the submission made by respondent No.2/complainant and the victim girl and the representation submitted by the victim girl.
7. The Dharwad Town Police have filed charge sheet against this appellant and others in Dharwad Town PS Crime No.222/2021 for the offences under Sections 354, 366A, 376D and 506 read with Section 34 of IPC, Sections 4, 6, 8 and 14 of POCSO Act, Sections 67B of IT Act and Sections 3(1)(w) and 3(2)(va) of SC &ST Act. The case is registered
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CRL.A No. 100347 of 2022 based on the complaint lodged by the victim girl on 25.12.2021. The victim girl is a student studying in PUC II year-Arts in Basel Mission College, Dharwad. One Mohan (CCWL-1) was following her since one year and teasing her and pressuring her to love him. In the month of August 2021, Saturday, CCWL-7- Adityagouda Patil came to Basel Mission college, Dharwad and pressurized her to come to temple and took her in bus towards KUD and at that time, CCWLs-2, 4 and 6 came there. CCWL-4 and 1 came on motor bike and took the victim girl towards Om Ashram. CCWLs-2, 3, 6 and 7 came there. CCWL-6 has kissed her and touched her body and tried to remove her clothes. CCWL-7 ran away from the spot due to fear. Other CCWLs have committed forcible sexual intercourse using condoms. CCWL-2 has recorded the said incident by video graphing in his mobile. All the CCWLs have given life threat to the victim girl if she disclosed the incident to others. After one week, CCWL-1 came near Basel Mission
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CRL.A No. 100347 of 2022 College premises and met the victim girl and stated that if she does not accompany him, the earlier video of the incident will be circulated in the media. So saying, he took the victim girl to Suryanagar by bus. CCWLs-2 to 6 and 8 have again threatened her that if she did not heed to their request, they are going to put the video scene in the internet and gave life threat to her. Again CCWLs-2 to 6 and 8 have committed forcible aggregated penetrative sexual assault on her and they gave life threat to her that if she disclosed the incident, they are going to kill. CCWL-7 knows that the victim is a member of SC and took her from Basel Mission College to KUD, Dharwad and other CCWLs have committed forceful sexual intercourse on her. Therefore, the charge sheet has been filed against this appellant and others. It is a gang-rape committed by this appellant along with others. This appellant and others have committed penetrative sexual assault upon the victim by taking video graphy of the
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CRL.A No. 100347 of 2022 incident and by threatening and blackmailing the victim girl took her for the second time. The victim is a minor girl as on the date of the offence and she is a member of scheduled caste. The Children's Court while passing the impugned order has observed that, "it has to protect the right and liberty of the victim girl, who is a minor and belonging to the scheduled caste". It has further observed that, "there may be every chance of destruction of peace in the locality and keeping this appellant in the Observation Home is the safest place till the completion of trial and in his interest also". Trial of the case which was pending before JJ Board came to be transferred to the Children's Court by order dated 01.04.2022 acting under Section 18(3) of JJ Act. While passing the said order, the JJ Board, has observed as under:
" The reports f rom the DIHMANS authori ty Dharwad to whom the CCWLs we re referred, have been recei ved. As per the said repo rts there exist no extreme ci rcumstances which
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could force the CCWLs to commit the alleged offences and they were mental ly fit. On tho rough examination of the repo rts availabl e on record and on inquiry of the CCWLs, this board has come to the conclusion that the CCWLs had the physical and mental capacity at the time of commission of alleged offences and that they could unders tand the consequences of such act. Due to thes e circumstanc es, there is need to try the CCWLs as adults. "
8. As per the report referred to above by the JJ Board with respect to the appellant and others physical and mental capacity at the time of commission of the alleged offences and they can understand the said acts and on that basis, the JJ Board came to the conclusion that the appellant and others need to be tried as adults. In a recent decision of the Hon'ble Apex Court in the case of The State o f Jammu and Kashmir (Now U.T. o f Jammu and Kashmir) & Ors. v. Shub am Sangra disposed of on 16.11.2022 reported in 2022 Li veLaw (SC) 965 has observed as under:
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"7. Befo re w e close this m atter, we would like to observe that the rising rate of juvenile delinquency in India is a m atter o f concern and requi res immediate attention. There is a school of thought exis ting in our country that firml y believes that howsoever heinous the crime m ay be, be i t single rape, gangrape, drug peddling o r murder but if the accused is a juvenile, he should be deal t with keeping in mind only one thing i.e., the go al of refo rmation. The school of thought, we are taking about believes that the goal of refo rmati on is ideal. The manner, in which brutal and heinous crimes have bee n committed o ver a pe riod of time by the juveniles and s till continue to be committed, m akes us wonder whether the Ac t, 2015, has subserved its objec t. We have started gathering an impression that the leniency with which the juveniles are deal t with in the name of goal of reform ation is making them more and more emboldened in indulging in such heinous crimes. It is fo r the Government to consider whether its enactmen t of 2015 proves to be effecti ve o r s omething still needs to be done in the matter before it is too late in the day."
9. The Hon'ble Apex Court in the case of Om Prakash v. State of Rajasthan and another reported in (2012) 5 SCC 201 , has cautioned the Courts to be
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CRL.A No. 100347 of 2022 more sensitive in dealing with the juveniles in case of serious nature like sexual molestation, rape, gang-rape, murder etc. paragraphs 3 and 23 which are relevant are as follows:
"3. Juvenile Jus tice Ac t was enacted wi th a laudable object of pro viding a separate forum o r a special co urt fo r holding tri al of children/juvenile by the juvenile c ourt as i t was felt that children become delinquent by fo rce of circums tance and not by choice and hence they need to be treated with care and sensi tivity while dealing and trying cases involving criminal offence. But, w hen an ac cused is alleged to have committed a heinous offence like rape and murder or any other grave offence when he ceased to be a child on attaining the age of 18 years, but seek s protec tion of the Juvenile Justice Act under the os tensible pl ea of being a minor, should such an accused be allowed to be tried by a juvenile court or should he be referred to a competent court of criminal jurisdic tion where the tri al of other adult person are held.
23. Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planned design of the accused committing the offence
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which indicates more towards the matured s kill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a majo r c annot be allowed to be ignored taking shelter of the pri nciple of benevolent legislation like the Juvenile Justic e Act, s ubve rting the course of justice as statutory protec tion of the Juvenile Justice Act is meant fo r m inors who are innocent l aw breakers and not accused of matured mind who uses the pl ea of minority as a ploy or shield to protec t himself from the sentence of the offence committed by him."
10. The conduct of the appellant and other CCWLs and the method and manner of commission of the offences, indicates an evil and well planned design of the appellant and others in committing the offences which indicates more towards matured skill of an accused than that of an innocent child. If the appellant is granted bail, there is threat to the victim as stated by her in her representation submitted to this Court. If the appellant is released on bail there is threat to his life by the general
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CRL.A No. 100347 of 2022 public as he is involved in gang-rape that too on a minor girl belonging to SC community. Therefore, curtailing all his liberty and keeping him in Observation Home is a safest place till completion of trial.
11. Considering all these aspects, the Children's Court has opined that this is not a fit case to exercise discretion to grant bail to this appellant. The Children's Court is right in observing the same and rejecting the bail application of this appellant. There are no grounds to interfere with the order passed by the Children's Court and grant bail to this appellant and accordingly, pass the following order:
The criminal appeal is dismissed.
Sd/-
JUDGE kmv