Karnataka High Court
Sri. Mallappa Chandrappa Bhandari vs State Of Karnataka on 3 June, 2022
Author: K. Natarajan
Bench: K. Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3rd DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
CRIMINAL PETITION NO.101426/2022
BETWEEN:
SRI. MALLAPPA CHANDRAPPA BHANDARI
AGED ABOUT 22 YEARS,
OCC. AGRICULTURE,
R/O DURADUNDI, GOKAK TALUK
BELAGAVI DIST-590001
.. PETITIONER
(BY SRI. SRINAND A. PACHCHAPURE, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
THROUGH THE POLICE SUB-INSPECTOR,
MUDALAGI POLICE STATION,
BELAGAVI DISTRICT.
NOW REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
DHARWAD BENCH-580011
2 . SMT LAKKAWWA MUTTEPPA NINGANNAVAR
AGED ABOUT 40 YEARS,
OCC. HOUSEHOLD WORK,
R/AT DUIRADUNDI, GOKAK TALUK
BELAGAVI DIST-590001
.. RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR RESPONDENT NO.1
RESPONDENT NO.2 SERVED.)
2
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C., SEEKING
TO GRANT THE BAIL TO THE PETITIONER/ACCUSED IN P.S. CRIME
NO.31/2022 FOR THE OFFENCES PUNISHABLE U/S 363 R/W SECTION 34
OF IPC AND U/S 8, 11(4) AND 12 OF POCSO ACT, 2012 BY THE
RESPONDENT-MUDALAGI POLICE STATION, BELAGAVI ON THE FILE OF
THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI.
THIS PETITION COMING ON FOR ORDERS THROUGH PHYSICAL
HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This petition is filed by the petitioner/accused under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for brevity) for granting bail in Crime No.31/2022 registered by the Mudalagi Police for offence under Section 363 r/w Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for brevity) and Section 8, 11(4) and 12 of the Protection of Children from Sexual Offences Act, 2012(hereinafter referred to as 'POCSO Act', for brevity). After arrest of the petitioner, Sections 376N, 506 of IPC and Sections 4 and 6 of POCO Act were added.
2. Heard the arguments of the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent/State.
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Respondent No.2 is served and unrepresented.
3. The case of the prosecution is that, on the complaint of respondent No.2-mother of the victim, the police registered a case against accused Nos.1 and 2 on 16.02.2022 for an offence under Section 363 of IPC. It is alleged in the complaint that, her daughter-victim is studying in her(complainant's) native place from the beginning and now she is studying in 9th standard and due to COVID her daughter had come to Duradundi and was residing with the complainant. During the victim's stay in their house, the petitoner used to follow her and was insisting the victim to love him. After they coming know of the fact, the petitioner was warned by the elders in the village. Her daughter was sent back to Naganur village. The petitioner did not mend his way. Subsequently, on 12.02.2022 at about 11:00pm the complainant received information from her brother-Dundappa that the victim left to a shop at 9:30pm and did not return. They tried to search her but could not trace her. Subsequently, they came to know from one Praveen Basavaraj Yadravi that accused No.1 took the victim girl on his motorcycle towards Gurlapur. After registering the case, 4 the police apprehended accused No.1 and the victim girl on 17.02.2022. He has been subjected to medical examination and was remanded to judicial custody. His bail petition came to be rejected by the Sessions Judge. Hence, he is before this Court.
4. Learned counsel for the petitioner contended that the petitioner is innocent of the alleged offences and as per the statement of the victim, the parents of the victim were trying to perform the marriage of the victim, therefore, she was not interested in marriage and asked the petitioner to take her to some other place. The medical examination report also shows hymen is intact. The statement of the victim does not reveal any act of sexual intercourse. He is custody for more than 3 months. Charge sheet is filed. Hence, prayed for granting bail.
5. Learned High Court Government Pleader for the respondent No.1/State seriously objected the bail petition and contended that the victim in her 164 Cr.P.C. statement has stated about sexual assault on her and that the Doctor has also opined sexual assault on the victim girl took place. Hence, prayed for dismissal of the petition.
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6. Having heard the learned counsel for the parties, perused the records.
7. On perusal of the same, it is not in dispute that a missing complaint was filed by the complainant-respondent No.1 against accused Nos.1 and 2 for an offence under Section 363 of IPC. After apprehension of the accused on 17.02.2022, the police added Sections 8, 11 and 12 of the POCSO Act but not Sections 4 and 6 of POCSO Act. Notice was also issued to the victim girl and subjected for medical examination and the doctor has collected blood stains, pubic hairs and vaginal swab and sent for FSL. FSL report is received and based on the FSL report, the Doctor has opined that, 'the victim is highly unlikely that sexual intercourse has taken place' whereas FSL report dated 11.03.2022 where undergarment of the victim, pubic hair, vaginal swab and that of the accused were all collected and sent for FSL, shows that blood stains was detected in article Nos.1 and 3, blood stain was not detected in article Nos.2, 4 and 5 and seminal stain was not detected in article Nos.1 to 5. Except some blood stains of the victim in her undergarment, there is no seminal stains found. 6 Therefore, the Doctor's opinion regarding sexual intercourse has taken place cannot be acceptable at this stage. That apart, the opinion of the Doctor on the request made by the Investigating officer dated 20.04.2022 reveals, question No.1 cannot be commented and hymen of the victim was intact. When hymen is intact, opinion of the Doctor that sexual intercourse has taken place is contradictory to the FSL report. Though the victim in her statement and in her further statement has not stated that accused committed any sexual intercourse but in 164 Cr.P.C. statement she has stated that accused No.1 continuously had intercourse with her whereas the medical report show that hymen is intact.
8. Therefore, considering these aspects and looking to the facts and circumstances of the case, I am of the view that without expressing any opinion on the merits of the case, by imposing stringent conditions, if bail is granted to the petitioner, no prejudice would be caused to the case of the prosecution.
Accordingly, the criminal petition is allowed. The trial Court is directed to release the petitioner/accused No.1 on bail in Crime 7 No.31/2022 of Mudalagi Police Station subject to the following conditions:
i. The petitioner shall execute a personal bond for a sum of `2,00,000/- (Rupees two lakh only) with two sureties for the likesum to the satisfaction of the trial court.
ii. The petitioner shall not tamper the prosecution witnesses directly or indirectly.
iii. The petitioner shall not indulge in similar offence.
iv. The petitioner shall not leave the jurisdiction of this Court without prior permission of the trial Court.
v. The petitioner shall take the trial without causing any delay.
If any of the conditions is violated, the prosecution is at liberty to move an application for cancellation of bail.
Sd/-
JUDGE kmv