Karnataka High Court
Sahadev S/O Basappa Chavarad vs The State Of Karnataka on 21 January, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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CRL.P No. 102268 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL PETITION NO.102268 OF 2024
BETWEEN:
SAHADEV S/O. BASAPPA CHAVARAD,
AGE: 34 YEARS, OCC. COOLIE,
R/O. CHIKKAMALLIGAWAD,
TQ/DIST. DHARWAD.
... PETITIONER
(BY SRI BASAVARAJ K. MATHAPATI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH DHARWAD RURAL POLICE STATION
REP BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
Digitally
signed by
MANJANNA
2. SMT. SHANTAVVA W/O. NAGARAJ KURABET,
MANJANNA E
E Date: AGE: 37 YEARS, OCC. HOUSEWIFE,
2025.01.22
10:42:44
+0530 R/O. CHIKKAMALLIGAWAD-580007,
TQ/DIST. DHARWAD.
... RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1;
R2- NOTICE SERVED)
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.,
SEEKING TO ALLOW THIS CRIMINAL PETITION AND ENLARGE
THE PETITIONER/ACCUSED WHO IS ARRESTED FOR THE
OFFENCE PUNISHABLE U/S 376(2)(N), 506 OF IPC AND U/S
5(L), 6 OF THE POCSO ACT IN SPL.SC.NO.87/2023 BEFORE
THE II ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD
AND CR.NO.240/2023 IN DHARWAD RURAL POLICE STATION,
IN THE INTEREST OF JUSTICE AND EQUITY.
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THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 16.01.2025, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY THE COURT, MADE
THE FOLLOWING:
CAV ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
This petition is filed by accused (petitioner) under Section
439 of Code of Criminal Procedure, 1973 ('CrPC' for short) for
grant of regular bail in Crime no.240/2023 of Dharwad Rural
Police Station for offences punishable under Sections 376 (2)
(n) and 506 of Indian Penal Code, 1860 ('IPC' for short) and
Sections 5 (l) and 6 of Protection of Children from Sexual
Offences Act, 2012 ('POCSO' for short).
2. Sri Basavaraj K. Mathapati, learned counsel for
petitioner submitted prosecution case was that on 29.09.2023
at 8.00 a.m., complaint was filed by Smt.Shantavva W/o
Nagaraj Kurabet that when her daughter (victim) was suffering
from stomach ache and taken to District Hospital, Dharwad,
she was found to be five months' pregnant. On enquiry, victim
revealed that at 7.00 p.m. on 16.02.2023, when victim was
home alone, petitioner came there told her that he liked her
since long and intended to marry her and asked her to have
sexual intercourse with him. When she refused, he threatened
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to kill her and her family members and thereafter had forcible
sexual intercourse with her. He also threatened against
revealing same to anyone. Likewise he had sexual intercourse
with her repeatedly and that he had also taken her on his
motorcycle to Mango Grove in IIT compound and had sexual
intercourse with her there. Due to fear, she had not disclosed
same to anybody and sought for taking action. Based on said
complaint, Crime no.240/2023 was registered by Dharwad
Rural Police Station for offences punishable under Sections 376
(2) (n) and 506 of IPC and Sections 5 (l) and 6 of POSCO.
3. It was submitted, date of incident was 16.02.2023
whereas complaint was filed on 29.09.2023 after delay of seven
months without proper explanation. It was submitted, in her
statement recorded under Section 164 of CrPC, victim stated
that on 16.02.2023 at 7:00 p.m., petitioner had sexual
intercourse with her under threat and that he had also taken
her to Mango Grove near IIT compound and that he had got her
mobile phone. It was submitted, in her statement recorded
during counseling at District Child Protection Unit on
03.10.2023, she stated that she was studying in IX Std. at
Konanatambigi Government High School, Haveri, while
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petitioner was from Chikkamalligawad, whom she was
acquainted with since Aiyappa Swamy pooja previous year.
When he had expressed his love and interest towards her, she
had said yes. Same would indicate that sexual intercourse
between them was with consent.
4. It was submitted petitioner was arrested on
30.09.2023. It was further submitted, health condition of
petitioner's parents was precarious, while his old aged father
was taking treatment at DIMHANS, Dharwad, his mother was
suffering from paralysis and completely bed-ridden. Therefore,
petitioner required to attend to them. It was submitted,
prosecution had completed investigation and filed charge-sheet
on 10.11.2023, wherein 30 witnesses were cited. It was
submitted, matter was thus pending and awaiting
commencement of trial. Conclusion of same was likely to be
delayed. In support of his submission, learned counsel relied
on decision of High Court of Bombay in Bail Application
no.3372/2021 disposed of on 15.11.2022.
5. It was submitted, in said matter, charge-sheet
material indicated victim was capable of understanding
consequences of her act and voluntarily accompanied/joined
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applicant, admitted she was in love with him, question whether
she consented for sexual intercourse would be matter of
evidence and fact that she had kept quiet until her WhatsApp
chat was objected to by her family members and that
completion of trial may take considerable time, were taken into
account for granting bail. Since presence of petitioner for
custodial interrogation was not necessary and petitioner was in
jail as undertrial for more than one year, was not justified and
sought for allowing bail petition on any conditions, which would
be complied with.
6. On other hand, Smt.Girija S. Hiremath, learned
HCGP for respondent no.1 - State opposed petition. She
submitted incident occurred on 16.02.2023 and thereafter.
complaint was filed on 29.09.2023. School records of victim
would indicate her date of birth as 24.02.2009. Thus, her age
as on date of incident would be 13 years 11 months and 23
days, whereas petitioner was 33 years of age. In his statement
recorded under Section 161 of CrPC, petitioner had admitted to
having sexual intercourse with victim at her house and also
near IIT compound, by threatening her. It was further
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submitted, DNA test report obtained by prosecution would
indicate that child born to victim was from petitioner.
7. Referring to material produced along with memo
dated 20.11.2024, it was submitted, petitioner had a brother
Vitthal working as lineman, in family of petitioner, and there
was not much substance in seeking for bail on ground of ill-
health of parents. On above grounds sought for dismissal of
bail petition.
8. Heard learned counsel and perused material on
record. Though notice served to respondent no.2, remained
absent.
9. From above, point that arises for consideration is:
"Whether petitioner is entitled for regular
bail with conditions?"
10. This petition is for grant of regular bail, wherein
petitioner is alleged to have committed offences under POCSO
as mentioned above.
11. While considering application for bail in cases
involving offences under POCSO Act, Hon'ble High Court of
Delhi in case of Dharmendra Singh v. The State (Govt of
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NCT Delhi) reported in 2020 SCC Online Delhi 1267,
identified several factors to be taken into account while
consideration applications for bail as follows:
"77. Though the heinousness of the offence alleged will
beget the length of sentence after trial, in order to
give due weightage to the intent and purpose of
the Legislature in engrafting section 29 in this
special statute to protect children from sexual
offences, while deciding a bail plea at the post-
charge stage, in addition to the nature and quality
of the evidence before it, the court would also
factor in certain real life considerations, illustrated
below, which would tilt the balance against or
in favour of the accused:
a. the age of the minor victim : the younger the
victim, the more heinous the offence alleged;
b. the age of the accused : the older the accused,
the more heinous the offence alleged;
c. the comparative age of the victim and the
accused : the more their age difference, the
more the element of perversion in the offence
alleged;
d. the familial relationship, if any, between the
victim and the accused : the closer such
relationship, the more odious the offence
alleged;
e. whether the offence alleged involved threat,
intimidation, violence and/or brutality;
f. the conduct of the accused after the offence,
as alleged;
g. whether the offence was repeated against the
victim; or whether the accused is a repeat
offender under the POCSO Act or otherwise;
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h. whether the victim and the accused are so
placed that the accused would have easy
access to the victim, if enlarged on bail : the
more the access, greater the reservation in
granting bail;
i. the comparative social standing of the victim
and the accused : this would give insight into
whether the accused is in a dominating
position to subvert the trial;
j. whether the offence alleged was perpetrated
when the victim and the accused were at an
age of innocence : an innocent, though
unholy, physical alliance may be looked at with
less severity;
k. whether it appears there was tacit approval-in-
fact, though not consent-in-law, for the
offence alleged;
l. whether the offence alleged was committed
alone or along with other persons, acting in a
group or otherwise;
m. other similar real-life considerations."
(emphasis in original)
12. On a prima facie analysis of material available, age
of petitioner is 33 years, while that of victim was 13 years 11
months and 23 days. As a result of sexual intercourse, victim
became pregnant and has given birth to child. DNA test results
would implicate petitioner. Petitioner and victim are from same
village and from same caste. In her statement recorded under
Section 164 of CrPC, victim has stated that petitioner had
sexual intercourse with her after she refused, under threat of
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her life and that of her family members. Petitioner is alleged to
have had repeated sexual intercourse with minor victim leading
to her pregnancy. Though case of tacit approval is attempted to
be made out, relying on statement of victim recorded during
counseling, legal position regarding consent insofar as offences
alleged under POCSO is settled by Hon'ble Supreme Court in
case of Independent Thought v. Union of India, reported in
2017 (10) SCC 800, wherein it held consent of victim would
be irrelevant where she was aged below 18 years. After lodging
of complaint, petitioner was apprehended at Bus stand, when
he was trying to flee away. Moreover, petitioner is stated to be
a coolie. Hence, there would be likelihood of his fleeing justice.
13. Material produced by prosecution that his father
was merely scanned at DIMHANS and did not avail any
treatment as well as presence of a brother available to take
care of them would explain away plea for bail on medical
condition of parents.
14. Though, absence of criminal antecedents, filing of
charge-sheet and proceedings awaiting commencement of trial
with prosecution citing 30 witnesses would favour
consideration, fact that petitioner aged 33 years is alleged to
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have had forced sexual intercourse with victim a minor aged
less than 14 years (13 years 11 months and 23 days) would
eliminate possibility of acts alleged to have occurred at age of
innocence. On other hand, they would be indicative of certain
extent of perversion. Further, petitioner and victim hailing from
same village and caste would aggravate claim for bail by
petitioner as same would open possibility of petitioner
influencing prosecution witnesses. In view of above, point for
consideration is answered in negative.
15. Hence, following:
ORDER
Petition is dismissed. It is however, clarified that observations made herein are on prima facie consideration of material at this stage and should not be taken into account while passing final judgment by trial Court and same to be based on consideration of material adduced during trial.
SD/-
(RAVI V.HOSMANI) JUDGE GRD,EM CT:PA LIST NO.: 1 SL NO.: 51