Karnataka High Court
Shri. Siddappa S/O. Balappa Benni vs The State Of Karnataka on 29 September, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO.102571 OF 2022
BETWEEN:
SHRI S IDDAPPA S/O. BALAP PA B ENNI,
AGE: 21 Y EARS , OCC:DRIV ER ,
R/O. CHULAK I, TQ: SAVA DATTI,
DIS T: B ELA GAVI, PIN-591110
...PETI TIONER
(B Y S HR I S . M. MUCHHANDI., ADV OCATE)
AND:
1. THE STATE OF KARNATAKA,
THE POLI CE INSPECTOR SAVA DA TTI,
TQ: SAVADATTI, DIS T: BELA GAVI ,
PIN-591126,
R/B Y ITS S TATE PUBLIC PR OS ECU TOR,
HIGH COURT B UIL DING,
HIGH COURT OF K ARNATAKA,
AT: DHAR WA D BENCH, PIN-580011.
2. SMT. SOMAVVA W/O. MA YAPPA
UDA GA TTI, AGE: 35 YEARS ,
OCC :C OOL IE, R/O .INAMGOVI NAKOPPA,
POS T: S HIRASA NGI, TQ:SAVA DA TTI,
DIS T: BELAGAVI, P IN-591126.
...R ESPONDENTS
(BY SHRI PRASHANTH V. MOGA LI, H CGP FOR R1 ;
NOTIC E T O R2 -S ERVED)
THIS CRI MINA L P ETITION IS FIL ED U /SEC.439 OF
CR.P.C, S EEK ING TO ENLARGE THE PETITIO NER /ACC US ED
NO.1 ON BAIL IN CR IME NO.163/2022 OF SAUNDATTI
POLIC E STA TIO N REGISTER ED FOR THE OFFENCES
PUNISHAB L E U /SEC.363, 376(2) (n), 376(3), 506, 109 R/W
SEC.34 OF IPC 1860 & S EC .4, 6 & 17 OF POCS O AC T-2012,
P ENDING IN SPL .CASE.NO.188/2022 ON TH E FIL E OF
ADDITIONAL DIS TRICT A ND S ESSIONS JUDG E, FTSC-1 ,
BELAGAV I, IN TH E I NTER ES T OF JUS TICE A ND EQU ITY.
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CRL.P No. 102571 of 2022
THIS CRIMI NA L PET ITION COMI NG ON FOR ORDERS
THIS DAY, THE COURT MA DE THE FOLLOWI NG:
ORDER
This petition is filed by accused No.1 under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.', for brevity) seeking bail in Crime No.163/2022 of Saundatti Police Station registered for the offences punishable under Sections 363, 376(2)(n), 376(3), 506, 109 read with Section 34 of The Indian Penal Code, 1860 (hereinafter referred to as 'IPC', for brevity), Sections 4, 6 and 17 of Protection of Children from Sexual Offence Act-2012 (hereinafter referred to as 'POCSO Act' for brevity), pending in Spl.Case No.188/2022 on the file of Addl. District and Sessions Judge, FTSC-I, Belagavi.
2. The case of prosecutions is that, one Smt. Somawwa W/o Mayappa Udagatti, the mother of victim girl filed complaint stating that, her -3- CRL.P No. 102571 of 2022 daughter/victim girl is aged 16 years. On 19.06.2022, the victim girl went for attending nature call and she did not return and they tried to call on her mobile phone and it was switched off. That on 20.06.2022, when they were searching, they received a call from the victim girl and she told the complainant that she got a missed call from 6363090920 about 8 days ago and later, she called that number and they both started talking over phone and that number belonged to petitioner/accused No.1. That on 19.06.2022 in the evening the petitioner called the victim girl and told her that he is coming to meet her. At about 6:30 p.m, he called the victim and the victim girl went out under the guise of attending nature call. They both met there and she enquired as to who is the other person on motorcycle and the petitioner told her that he is Padeppa Fakeerappa Hebballi i.e, accused No.2. The petitioner/accused No.1 told -4- CRL.P No. 102571 of 2022 the victim girl that he wants to marry her and asked her to come along with them and she refused. She was forcibly made to sit on motorcycle in between petitioner and accused No.2. They threatened her with dire consequences. Thereafter, all the three traveled on the motorcycle via, Mullur Ghat to Ramadurg and then to Doddamangadi to Ghatakanur road. They stopped the motorcycle and forcibly took the victim girl into sugarcane field and committed sexual intercourse on her at 9:30 p.m and accused No.2 was sitting near the motorcycle. They threatened her not to reveal it to anyone and brought her to Hulikatti and left her and went away. The victim girl went by bus to Kalakol and called the complainant over phone. The complainant then went along with her relatives to Hulikatti, then discussed with the victim, relatives and filed complaint. The said complaint came to be -5- CRL.P No. 102571 of 2022 registered in Crime No.163/2022 of Saundatti Police Station for the offences punishable under Sections 363, 376, 506 read with Section 34 of IPC and Sections 4 and 6 of POCSO Act. The police arrested the petitioner/accused No.1 and accused No.2 on 22.06.2022 and petitioner/accused No.1 is in judicial custody. The theory put forth by the prosecution is that, the petitioner started calling the victim girl over phone on and often and he became close with her. He along with accused No.2 went on his motorcycle to meet her. They both picked her and took her to Halagatti village limits and accused No.1 committed sexual intercourse on her several times in the sugarcane field and threatened her not to inform anyone. The police have filed charge-sheet against the petitioner/accused No.1 and accused No.2 for the offences punishable under Sections 363, 376(2)(n), 376(3), 506, 109 read with Section 34 -6- CRL.P No. 102571 of 2022 of IPC and Sections 4, 6 and 17 of POCSO Act and the same is pending in Spl.Case No.188/2022, on the file of Addl. District and Sessions Judge, FTSC- I, Belagavi. The petitioner-accused No.1 filed Crl.Misc.No.1150/2022 and the same came to be rejected by learned Addl. District and Sessions Judge, FTSC-1, Belagavi by order dated 03.09.2022. Therefore, the petitioner-accused No.1 is before this Court seeking bail.
3. Heard the arguments of the learned counsel appearing for the petitioner and learned High Court Government Pleader for respondent No.1-State. Respondent No.2 was present before the Court physically on the previous date and prayed not to grant bail to the petitioner.
4. It would be the contention of the learned counsel for the petitioner that, the victim girl had love affair with the petitioner and they came in -7- CRL.P No. 102571 of 2022 contact over phone. It is his further submission that the doctor who examined the victim girl has noted that there are no external injuries, the hymen is not intact and there is a old tear and her skeletal age is more than 16 years less than 18 years and dental age is 16-17 years and vaginal smear is negative for spermatozoa. It is his further submission that the victim girl has stated in her statement recorded under Section 164 of Cr.P.C that she and petitioner became friends by talking over mobile phone. It is his further submission that the call details of the mobile phones of petitioner and the victim girl revealed that there are several phone calls between 12.06.2022 to 26.02.2022, which show that there is a intimacy between petitioner and the victim girl. It is his further submission that the petitioner is aged 21 years and he is in judicial custody since 22.06.2022 and if he is continued in the prison, he -8- CRL.P No. 102571 of 2022 will come in contact with hardened criminals. It is his further submission that as the charge-sheet is filed, the petitioner is not required for custodial interrogation. With this, he prayed to allow the petition.
5. Per contra, learned High Court Government Pleader contends that, the date of birth of the victim girl as per her school records is 07.04.2008. It is his further submission that the doctor who examined the victim girl has noted that hymen is not intact and there is old tear. It is his further submission that the victim girl in her statement recorded under Section 164 of Cr.P.C has specifically stated the alleged forcible intercourse on her by this petitioner in a sugarcane field. The call detail records show that there are calls between petitioner and the victim girl on the date of incident and prior to it. The charge-sheet material shows prima-facie case against the -9- CRL.P No. 102571 of 2022 petitioner-accused No.1 for the offences alleged against him. It is his further submission that if the petitioner is granted bail, he will threaten complainant and other prosecution witnesses. With this, he prayed to reject the petition.
6. Having regard to the submission made by the learned counsel for the petitioner and the learned High Court Government Pleader, this Court has gone through the charge sheet records.
7. As per the complaint and the statement of the victim girl, her age is 16 years. The victim girl came in contact with the petitioner/accused No.1 over phone and developed friendship with him. As per statement of the victim girl, she met the petitioner/accused No.1 for the first time on 19.06.2022 and there is a allegation that he took her in a sugarcane field and forcibly had sexual intercourse on her three times. The doctor who
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CRL.P No. 102571 of 2022 examined the victim girl did not find any external injuries over the body of the victim girl. More so, there is old tear of hymen and vaginal smear is negative for spermatozoa. Therefore, the said aspect rules out the alleged sexual intercourse forcibly in a sugarcane field. The victim girl is of the age of understanding the consequences of her acts. There are no criminal antecedents of the petitioner. The petitioner is aged 21 years and if he is kept in prison, he may come in contact with hardened criminals.
8. The main objection of the prosecution is that, if the petitioner is granted bail, he will threaten the complainant and other prosecution witnesses can be met with by imposing stringent conditions. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for
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CRL.P No. 102571 of 2022 granting bail subject to certain terms and conditions. Hence, I proceed to pass the following:
ORDER The petition filed under Section 439 of Cr.P.C. is allowed. Consequently, the petitioner/accused No.1 shall be released on bail in Crime No.163/2022 of Saundatti Police Station, pending in Spl. Case No.188/2022 on the file of the learned Additional District and Sessions Judge, FTSC-1, Belagavi subject to the following conditions:
i) The petitioner 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.
ii) The petitioner shall not indulge in tampering the prosecution witnesses.
iii) The petitioner shall attend the Court on all the dates of hearing unless
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CRL.P No. 102571 of 2022
exempted and co-operate in speedy
disposal of the case.
Sd/-
JUDGE
AM