Karnataka High Court
Sri Kiran Kumar vs State Of Karnataka By on 12 September, 2014
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF SEPTEMBER, 2014
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION No. 5083 OF 2014
BETWEEN
Sri. Kiran Kumar
S/o Raju, Aged about 25 years,
R/at No.162, 1st Main Road,
2nd Cross, Byrappa Block,
Tyagarajanagar, Bangalore City.
Permanent address:
At Karadakere Village,
Maddur Taluk, Mandya District,
Pin Code - 571 428. ... PETITIONER
(By Sri : H.P. Leeladhar, Adv.)
AND
State of Karnataka,
By Gubbi Police, Tumkur District,
Gubbi - 572 216. ... RESPONDENT
(By Sri K NAGESHWARAPPA, HCGP)
***
THIS CRL.P IS FILED U/S. 439 CR.P.C PRAYING TO
RELEASE THE PETITIONER ON BAIL IN CRIME
2
NO.17/2013 OF GUBBI POLICE STATION, CHARGE
SHEET HAS BEEN FILED IN C.C. NO.98/2013, NOW IN
TURN NUMBERED AS SPECIAL CASE NO.137/2013 FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 366,
344, 392, 323, 506, 376 R/W SECTION 34 OF I.P.C.
AND UNDER SECTIONS 3 AND 4 OF PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, PENDING ON
THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE AT TUMKUR, IMPOSING ANY CONDITION/S AS
THIS HON'BLE COURT DEEMS FIT.
THIS CRIMINAL PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This is the petition filed by the petitioner - accused No. 1 under Section 439 of Cr.P.C. seeking his release on bail for the alleged offences punishable under Sections 366, 344, 392, 323, 506, 376 r/w Section 34 of I.P.C. and under Sections 3 and 4 of Protection of Children from Sexual Offences Act registered in respondent - Police Station Crime No. 17/2013.
2. Heard the arguments of the learned Counsel appearing for the petitioner/accused No.1 and also the 3 learned High Court Government Pleader for the respondent/State.
3. Learned Counsel for the petitioner during the course of his argument made the submission that the father of the victim girl lodged the complaint in this case alleging that the present petitioner kidnapped his daughter and thereafterwards he committed the offence of rape on her. Learned Counsel also made the submission that now the trial is commenced and the father has been examined as PW-1 and the victim girl has been examined as PW-2. Both have turned hostile and not supported the case of the prosecution. Hence, the learned Counsel made the submission that this itself goes to show at this stage that petitioner has not at all committed the alleged offences. He also submitted that with regard to the alleged offence under the POCSO Act, Special Court is to be constituted and hence, other accused persons have been granted anticipatory bail. 4 By imposing any reasonable conditions, the petitioner may be admitted to bail.
4. As against this, the learned High Court Government Pleader during the course of his argument made the submission that it is a serious offence alleged against the petitioner that he has committed rape on the minor girl. He also submitted, when he applied for bail this Court after considering the merits of the case, ultimately held that there is a prima facie case against the present petitioner and hence, the bail petition has been rejected. The learned High Court Government Pleader also made the submission that only on the basis of the evidence of PW-1 and PW-2 and that they have turned hostile, at this stage it cannot be said that the petitioner has not committed the offence. The other important witnesses are to be examined in the case like Doctor, Investigating Officer and also the other 5 witnesses. When that is pending, at this stage the petitioner is not entitled to be granted with bail.
5. I have perused the averments made in the bail petition, FIR, complaint, order passed by the lower Court and all other materials produced by the learned Counsel for the petitioner along with the petition. Earlier, the other accused persons approached this Court seeking their release on bail and this Court by order dated 5th April 2013 passed in Crl. P. No. 1315/2013 granted anticipatory bail to accused Nos.4, 6 and 7. So also, the present petitioner approached this Court seeking his release on bail under Section 439 of Cr.P.C. This Court has considered the bail application and passed the order dated 18th July 2013 in Crl.P. No. 3885/2013. In paragraphs 2 and 3 this Court has held that :
"A perusal of the charge sheet specifies that petitioner is a married person and kidnapped the minor victim Ramya and committed rape 6 on her. In the circumstances, the petitioner is not entitled for bail.
In paragraph 3 of the said order, this Court has also observed that :
"The learned Counsel for the petitioner contends that this Court in Crl.P. 3706/2013 enlarged Accused No.3 on bail and on parity the petitioner is also entitled for bail. Having regard to the nature of the allegations made against this petitioner and the nature of allegations made against Accused No.3, the principle of parity is not applicable".
Observing it, this Court has dismissed the bail petition.
6. Now, coming to the contention of the learned Counsel for the petitioner that at this stage father and the victim girl have been examined as PWs 1 and 2 in the case before the Trial Court, they turned hostile and not supported the case of the prosecution and hence, it prima facie shows that petitioner has not committed the alleged offences and he is to be enlarged on bail. 7
7. But as submitted by the learned High Court Government Pleader the other witnesses in the case have to be examined by the Trial Court like., Doctor, Investigating Officer and other witnesses whose statements have been recorded by the Investigating Officer during the investigation. It is no doubt true, looking to the deposition copies produced by the learned Counsel for the petitioner herein both witnesses turned hostile. But what is the evidentiary value to be attached to the deposition of PWs 1 and 2 is a matter to be considered by the Sessions Court after completing the trial of the matter. Therefore, at this stage, this Court cannot come to the conclusion that because they turned hostile, the prosecution failed to prove the charges levelled against the present petitioner. When the Trial Court is recording the evidence of all other witnesses then the Trial Court will be in a better position to opine about the alleged offences whether 8 they have committed or not. Hence, at this stage, I am of the opinion that it is not a fit case for exercising discretion in favour of the petitioner and to release him on bail.
8. Accordingly, the petition is rejected.
However, in view of the submission made by the learned Counsel for the petitioner herein that since from the date of arrest the petitioner is in custody, the learned Sessions Judge is hereby directed to take up the matter on priority basis and to dispose of the same as early as possible but not later than two (2) months from the date of receipt of copy of this order.
The High Court Registry is directed to send a copy of this order to the concerned Sessions Judge immediately.
Sd/-
JUDGE Rbv