Karnataka High Court
N. Anandamurthy vs State By on 26 March, 2014
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF MARCH 2014
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION No.4986/2013
BETWEEN:
N. Anandamurthy,
S/o. Nanjundashetty,
Aged about 36 years,
R/at. D.No.134,
E Block,
Vijayanagar 3rd Stage,
Mysore-560 001. .. PETITIONER
(By Sri. K. B. K. Swamy, Adv.)
AND:
State by
New Extension Police,
Tumkur-572 526.
Rep. by
State Public Prosecutor,
High Court Building,
Bangalore. .. RESPONDENT
(By Sri. K. Nageshwarappa, HCGP)
This criminal petition is filed under Section 438 of the
Cr.P.C. praying to enlarge the petitioner on bail in the event
of his arrest in Cr. No.314/2012 of New Extension P.S.,
Tumkur, and in Spl. C.C.No.93/2012 on the file of the III
Addl. S.J., Tumkur for the offences punishable under
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Sections 344, 366, 366(A), 376 R/W Sec. 34 of IPC and U/s
3(i)(ii)(v)(xi) of SC/ST (POA) Act, and 4(a),(b),(c) ITP Act and
3(a) to (d) Protection of Children from Sexual Offences Act.
This petition coming on for Orders this day, the Court
made the following :
ORDER
This petition is filed by the petitioner-accused No.2 under Section 438 of Cr.P.C. seeking a direction to the respondent police that in the event of his arrest, he be released on bail of the offences punishable under Sections 344, 366, 366(A) and 376 read with Section 34 of IPC and Section 3(i) (ii) (v) and (xi) of SC/ST (Prevention of Atrocities) Act and Section 5(a) to (c) of Immoral Traffic Prevention Act and Section 3(a) to (d) of the Protection of Children from Sexual Offences Act registered in respondent Police Station Crime No.314/2012.
2. I have heard the learned Counsel appearing for the petitioner-accused No.2 and the learned High Court Government Pleader appearing for the respondent-State. 3
3. Learned Counsel for the petitioner, during the course of the arguments, submitted that looking to the materials on record, the case of the prosecution is totally inconsistent and it is not worth believable. He made submission that there is inordinate delay in lodging the complaint for missing of the daughter of the complainant. He further made submission that so far as the allegation against the petitioner that, accused No.1 took the victim girl firstly to Tumkur and thereafter to Mysore, and he has sold the victim girl to petitioner-accused No.2 for a sum of Rs.15,000/-is not acceptable. He submitted that as per the averments made in the complaint, it goes to show that when accused No.1 came to the house of the victim girl, her parents went out side and she was alone in the house and thereby he committed the forcible sexual intercourse on her. When she started to cry, he consoled her stating that he is going to marry her. The learned Counsel further submitted that the conduct of the victim girl is very important. It is further alleged in the complaint that immediately after the incident, the mother of the victim girl came to house and the girl has not revealed the incident before her mother. Looking 4 to the date, it is mentioned in the complaint that accused No.1 took the victim girl to Mysore on 4.11.2012 which is falsified by the date mentioned in the mahazar wherein the date is mentioned as 1.11.2012. He also submitted that the opinion of the Doctor who has examined the victim girl has also not supported the case of the prosecution. He submitted that though it is the allegation that for a period of 24 days, the petitioner has used the victim for sexual assault, looking to the opinion of the Doctor, there are no injuries seen on the person of the victim girl. Hence, he submitted that there is no prima facie case made out by the prosecution and hence, petitioner may be enlarged on bail by imposing reasonable conditions.
4. As against this, learned High Court Government Pleader appearing for the respondent-State, during the course of the arguments, submitted that the statement of victim girl so also the statement of the mother of the victim goes to show that firstly accused No.1 committed forcible sexual intercourse on the victim girl and thereafter, accused No.1 took her to Mysore and sold to petitioner-accused No.2 5 for a sum of Rs.15,000/-. He made a submission that the petitioner by collecting amount from other persons, who are visiting his house, induced the victim girl for prostitution. This aspect has been supported by the statement of neighbouring witnesses to the house of the petitioner. He submitted during investigation, the petitioner did not available for interrogation though the investigating officer has made an attempt to find him. Now the charge sheet is filed showing the petitioner as absconding. Therefore, he is not entitled for grant of bail.
5. I have perused the averments made in the bail petition, FIR, complaint, the charge sheet material so also the study certificate issued by the Nrupathunga Pre University Tumkur, wherein the date of birth of the victim girl is shown as 23.5.1995.
6. Perusing the averments made in the complaint, it is contended by the victim girl that accused No.1 came to her house on 30.10.2012 when there were no other persons in the house and at 11.30 a.m., he committed forcible sexual 6 intercourse on her. The complaint also goes to show that immediately, thereafter, mother of the victim girl came to the house and the accused person ran away from the house. The averments in the complaint further go to show that when the mother of the victim girl came to the house, she has seen the petitioner present and running away from the house. If that is so, nothing was prevented the mother of the victim girl to lodge a complaint alleging the same thing before the police. The conduct of the mother of the victim girl is also important in this case. However, the materials go to show that 27 days after the alleged incident, missing complaint has been filed by the father of the victim girl. It creates a doubt regarding case of the prosecution as to whether the said incident has taken place on 30.10.2012 in the house of the victim girl. Looking to the mahazar proceedings produced in the case, it is altogether different from that of the complaint. Looking to all these materials on record and as the medical report is not supporting the case of the prosecution, I am of the opinion that the complaint is said to be motivated and it is after thought.
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7. So far as the petitioner is concerned, it is an allegation that accused No.1 sold the victim girl to accused No.2 for a sum of Rs.15,000/-. In this regard, the date mentioned in the complaint is that the victim girl was taken to the house of Murthy on 4.11.2012, where as in the other documents produced in the case it is mentioned as 1.11.2012. Therefore, again there is inconsistency in the materials produced by the prosecution.
8. The petitioner filed the present petition under section 438 of Cr.P.C. seeking anticipatory bail. Looking to the offences alleged under Section 3(i) (ii) (v) and (xi) of SC/ST (Prevention of Atrocities) Act, the Court has to examine whether the materials placed on record go to show prima facie any such offence said to have been committed under the said provisions of the Act, as under Section 18 of the Act, there is a bar to entertain a petition for grant of anticipatory bail. Looking to the materials, I have referred the provisions and in view of the above discussion, I am of the opinion that the prosecution has not placed satisfactory materials in respect of the offences committed under the 8 provisions of the SC/ST Act. Therefore, Section 18 of the said Act will not be a bar for entertaining petition for grant of anticipatory bail in this case.
9. The materials on record are inconsistent with each other so also there is uncertainty in the conduct of parties. Therefore, it will not inspire the confidence of this Court. in view of these aspects, I am of the opinion that it is a fit case to exercise discretion in favour of the petitioner.
10. Accordingly, the petition is allowed. The petition is allowed. The respondent police are directed to release the petitioners on bail in the event of their arrest for the offences punishable under Sections 344, 366, 366(A) and 376 read with Section 34 of IPC and Section 3(i) (ii) (v) and (xi) of SC/ST (Prevention of Atrocities) Act and Section 5(a) to (c) of Immoral Traffic Act and Section 3(a) to (d) of the Protection of Children from Sexual Offences Act registered in respondent Police Station Crime No.314/2012, subject to the following conditions:
I. The petitioner shall execute a bond for a sum of Rs.50,000/- (Rupees fifty thousand only) and 9 shall offer one surety for the likesum to the concerned Magistrate Court.
II. The petitioner shall appear before the
investigating officer for the purpose of
interrogation, whenever called upon to do so. III. The petitioner shall not intimidate or tamper with prosecution witnesses, directly or indirectly.
IV. The petitioner shall appear before the concerned Magistrate Court within thirty days from the date of this order and shall execute personal bond as well as surety bond.
Sd/-
JUDGE Cs/-