Karnataka High Court
Shri. Basavraj Alias Basu S/O. Raju ... vs The State Of Karnataka on 29 October, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 102727 OF 2022
BETWEEN:
SHRI. BASAVRAJ @ BASU
S/O. RAJU AJJAPPAGOL
AGE. 20 YEARS, OCC. AGRICULTURE,
R/O. HANDIGUND, TAL. RAIBAG,
DIST. BELAGAVI.
...PETITIONER
(BY SRI. JAGADISH PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH HARUGERI POLICE STATION,
R/BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD.
2. SMT. YALLAWWA LAKKAPPA NEELANNAVAR
AGE. 35 YEARS, OCC. PRIVATE WORK,
R/O. HANDIGUND, TAL. RAIBAG,
DIST. BELAGAVI-591317.
...RESPONDENTS
(BY SRI. PRASHANTH V. MOGALI, HCGP FOR R1;
R2 - SERVED)
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.,
SEEKING TO ALLOW THE PETITION AND THE
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CRL.P No. 102727 of 2022
PETITIONER/ACCUSED HEREIN MAY BE ENLARGED ON BAIL IN
FIR CRIME NO.131/2022 IN CONNECTION WITH HARUGERI
P.S. FOR OFFENCES PUNISHABLE UNDER SECTIONS 341,
376(3) OF IPC AND SECTIONS 4 AND 6 OF THE POCSO ACT,
2012.
THIS CRIMINAL PETITION COMING ON FOR
ORDERS TH IS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition is filed by the sole accused under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.131/2022 of Harugeri Police Station registered for the offences punishable under Sections 341, 376(3) of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity), Sections 4 and 6 of Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as the 'POCSO Act' for brevity).
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2. The case of the prosecution is that, the victim girl has filed the complaint stating that she is residing with her family in Handigund Village. It is further stated that on 07.06.2022 when her father and mother had been to work, she was alone at her house at about 2.30 p.m. when she went to fetch water near the house of the petitioner/accused, at that time the petitioner/accused came from behind held the complainant tightly, shut her mouth, took her to his house and closed the door. At that time she started hue and cry and the accused threatened her not to cry or make noise and he is not going to leave her and thereafter the petitioner/accused took off her clothes and had sexual intercourse on her, due to that she fell unconscious. Later at 6.00 p.m. she regained consciousness and she is screaming and crying, at that time her mother and neighbours came to the spot and opened the door -4- CRL.P No. 102727 of 2022 and took her to their house. Thereafter due to fear she did not disclose the said incident to anybody and after discussion they filed the complaint belatedly. The said complaint came to the registered in Crime No.131/2022 in Harugeri Police Station for the offences punishable under Sections 341, 376(3) of IPC and Sections 4 and 6 of POCSO Act. The petitioner/accused came to be arrested on 15.07.2022 and he is in judicial custody. The petitioner filed Criminal Miscellaneous No.1051/2022 seeking bail and the same came to be rejected by the Additional District Judge FTSC-I, Belagavi by order dated 23.08.2022. Therefore, the petitioner/accused is before this Court seeking bail.
3. Heard the arguments of learned counsel appearing for petitioner and learned High Court Government Pleader for respondent No.1-State. -5- CRL.P No. 102727 of 2022 Inspite of service of notice, respondent No.2 remained absent and unrepresented.
4. The learned counsel for the petitioner would contend that the alleged incident occurred on 07.06.2022 and the complaint came to be filed by the victim girl on 15.07.2022 and there is 38 days delay in filing the complaint and there is no proper explanation for the delay in complaint. It is his further submission that the victim girl in her statement recorded under Section 164 of Cr.P.C. has stated that she immediately went to the Police Station for filing the complaint. The doctor who examined the victim girl has noted that her hymen is intact and there are no injuries over Labia Majora and Labia Minora. It is his further submission that the very fact of the hymen being intact rules out the sexual intercourse by this petitioner on the victim girl. It is his further submission that it appears that there is a love -6- CRL.P No. 102727 of 2022 affair between the petitioner and the victim girl and to break that affair, parents of the victim girl have got filed false complaint against the petitioner. 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 24.04.2008 and she is aged 15 years as on the date of alleged offence. The doctor who examined the victim girl has noted that her dental age is between 15 to 16 years and skeletal age is more than 16 years and less than 18 years. The victim girl in her statement recorded under Section 164 of Cr.P.C. has specifically stated the acts of this petitioner/accused forcibly taking her to his house and having forcible sexual intercourse on her. It is -7- CRL.P No. 102727 of 2022 his further submission that the charge sheet material shows prima facie case against the petitioner for the offences alleged against him. If the petitioner is granted bail, he will threaten the complainant, other prosecution witnesses and flee from justice. With this, he prayed to reject the petition.
6. Having regard to the submissions made by learned counsel for the petitioner and learned High Court Government Pleader for respondent No.1-State, this Court has gone through the charge sheet records and the order passed by the Sessions Court.
7. The accusation leveled against this petitioner/accused is that, he forcibly took the victim girl into his house and had forcible sexual intercourse on her. The victim girl in her statement recorded under Section 164 of Cr.P.C. -8- CRL.P No. 102727 of 2022 has stated that this petitioner/accused forcibly took her to his house and had forcible sexual intercourse on her. The victim girl has been examined by the doctor and he has noted that her hymen is intact and there are no injuries over Labia Majora and Labia Minora. The very fact of the hymen being intact and there are no injuries itself rules out any forcible sexual intercourse on the victim girl. The alleged incident occurred on 07.06.2022 and the complaint came to be filed on 15.07.2022, there is a delay in filing the complaint and there is no proper explanation forthcoming from the averments of the complaint.
Considering all these aspects and contention of the counsel for the petitioner that there is a love affair between the petitioner and the victim girl and to break that affair the parents have got filed false complaint against the petitioner, has some force. As the charge sheet is filed, the -9- CRL.P No. 102727 of 2022 petitioner is not required for custodial interrogation. The main apprehension of the prosecution is that if the petitioner/accused is granted bail, he will threaten the complainant, other prosecution witnesses and flee from justice can be met with by imposing stringent conditions.
8. 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 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 shall be released on bail in Crime No.131/2022 of Harugeri Police Station, subject to the following conditions:
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CRL.P No. 102727 of 2022
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 like sum 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 exempted and co-operate in speedy disposal of the case.
Sd/-
JUDGE SMM