Karnataka High Court
Sri Kareppa Apapsab Holkar vs The State Of Karnataka on 28 August, 2023
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NC: 2023:KHC-D:9571
CRL.P No. 101580 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL PETITION NO. 101580 OF 2023
BETWEEN:
SRI. KAREPPA APPASAB HOLKAR,
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O: NIDAGUNDI VILLAGE, TAL: KHADAKALAT,
DIST: BELAGAVI. PIN: 591228.
...PETITIONER
(BY SRI. SANTOSH B. MALAGOUDAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH P S I KHADAKALAT POLICE STATION,
REPTD. BY ADDL. SPP,
STATE PUBLIC PROSECUTOR OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, PIN: 580011.
2. SMT. ROOPA BHIMGOUDA NAIK,
CHANDRASHEKAR AGE: 32 YEARS, OCC: AGRICULTURE,
LAXMAN R/O: BIRNAL, TAL: RAIBAG,
KATTIMANI
DIST: BELAGAVI, PIN: 591317.
...RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1;
Digitally signed by
CHANDRASHEKAR SMT. KAVITA S. JADHAV, ADVOCATE FOR
LAXMAN
KATTIMANI SRI. ARUN C. NEELOPANT, ADVOCATE FOR R2)
Date: 2023.08.31
11:39:13 +0530
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. SEEKING TO ALLOW THE PRESENT CRIMINAL
PETITION AND THE PETITIONER MAY BE DIRECTED TO BE
RELEASED ON BAIL IN KHADAKALAT P.S. CRIME NO. 57/2023
FOR THE OFFENCES P/U/SEC.363, 376AB OF IPC AND SEC. 4(2)
OF POCSO ACT 2012, IN SO FAR AS PRESENT
PETITIONER/ACCUSED NO.3 IS CONCERNED.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2023:KHC-D:9571
CRL.P No. 101580 of 2023
ORDER
Petitioner who is arraigned as accused No.3 has filed this petition under Section 439 of the Criminal Procedure Code (for short, 'Cr.P.C.') to release him on bail in Crime No.57/2023 for the offences punishable under Sections 363, 376AB of the Indian Penal Code (for short, 'IPC') and section 4(2) of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act').
2. In support of his petition, the petitioner/accused No.3 has contended that the allegations made in the complaint are false, baseless and created to implicate the petitioner/accused No.3. There is inordinate delay in filing the complaint and delay is caused to connect the petitioner/accused No.3 with the false story foisted against him. Petitioner/accused No.3 is arrested based on the voluntary statement of accused No.2-Shailaja and the role shown to him is that he is aware of the alleged rape and threatened the victim not to reveal the same to anyone. The statement of co-accused is hit by Section 25 of the Indian Evidence Act. Petitioner/accused No.3 is in -3- NC: 2023:KHC-D:9571 CRL.P No. 101580 of 2023 custody since 30.05.2023. Prima facie there are no specific allegations against the petitioner/accused No.3. He is the resident of the address given in the cause title and owning movable and immovable properties and as such there are no chances of he absconding. He is ready to abide by any conditions that may be imposed and prays to allow the petition.
3. Learned High Court Government Pleader and learned counsel for the respondent No.2 submitted oral objections stating that the charge sheet came to be filed against accused Nos.1 to 3 for the offences punishable under Section 376A and B of the IPC and Section 4(2), (6) of POCSO Act as against accused No.1 and insofar as the accused Nos.2 and 3 are concerned, for the offences punishable under Section 109 read with Section 34 of IPC and Section 17 of POCSO Act.
3.1. It is the case of the prosecution that accused No.2-Shailaja is the wife of Ramakrishna the brother of paternal grandmother of the prosecutrix. After the death of the said Ramakrishna, accused No.2-Shailaja went back -4- NC: 2023:KHC-D:9571 CRL.P No. 101580 of 2023 to her parents place-Tapakarwadi. However, they were in visiting terms to the respective places. About 15 days prior to the date of incident, prosecutrix who is aged about 10 years 2 months went to Tapakarwadi to attend Sri.Laxmi Devi Jatra and stayed with accused No.2-Shailaja.
3.2. However, on 28.05.2023 at about 11.30 p.m. accused No.2-Shailaja informed the complainant i.e. the mother of the prosecutrix that prosecutrix is complaining stomach ache since previous day and she was given treatment at Chikkodi Government Hospital. After coming to know about it, complainant and her husband- Bhimagouda and brother-in-law-Subhash went to the Chikkodi Government hospital. On enquiry, prosecutrix revealed that on 27.05.2023 in the afternoon, while she was near the temple, two persons covering their faces forcibly took her to the adjoining lands and while one person committed rape on her and other person was watching for the people and after other person said something in Marathi, the first person left her. The prosecutrix went back to the house of accused No.2- -5- NC: 2023:KHC-D:9571 CRL.P No. 101580 of 2023 Shailaja but did not reveal her anything. After she complained stomach ache, though she got treatment but she could not find relief.
3.3. Based on the said information, the complainant lodged the complaint. On the basis of it case was registered and investigation is taken up. However, during the course of investigation, accused No.2-Shailaja was arrested on 29.05.2023 and her voluntary statement revealed that she is having affair with accused No.3- Kareppa and accused No.1 is the friend of accused No.3- Kareppa. For the said jatra, both of them had come to the house of accused No.2-Shailaja. While accused No.2- Shailaja was sleeping inside room with accused No.3- Kareppa, the prosecutrix was sleeping outside the room on the cot and accused No.1 was sleeping on the floor. During night, accused No.1 forcibly had sexually intercourse her and on hearing her cries, accused No.2-Shailaja and accused No.3-kareppa came out and warned the prosecutrix not to reveal the true facts. Therefore, the -6- NC: 2023:KHC-D:9571 CRL.P No. 101580 of 2023 prosecutrix came out with the story of she being attacked by two known persons.
3.4. On the basis of voluntary statement of accused No.2-Shailaja, accused Nos.1 and 3 were arrested. After completing detailed investigation, charge sheet is filed against accused Nos.1 to 3. It makes out a strong prima facie case. If petitioner is released on bail, he may threaten or tamper with the prosecution witnesses and he may also abscond and prays to dismiss the petition.
4. Heard the arguments and perused the records.
5. At the out set it is relevant to note that the prosecutrix is aged about 10 years 2 months. She had gone to the house of accused No.2-Shailaja, who is her distant relative to attend Sri.Laxmi Devi Jatra. Accused Nos.1 and 3 also came to the house of accused No.2- Shailaja in connection with the said jatra. The charge sheet revealed that on the date of incident, accused Nos.1 and 3 were present at the place of incident. While accused No.2 slept inside the room with accused No.3-Kareppa, the prosecutrix was made to sleep outside the room. Accused -7- NC: 2023:KHC-D:9571 CRL.P No. 101580 of 2023 No.1 was also sleeping on the floor outside the room. When the incident took place wherein accused No.1 committed forcibly raped on prosecutrix who was young child, accused No.2 and accused No.3 came to know about it. Admittedly, immediately after the incident, neither the accused No.1 nor the accused No.3 have brought the true fact to the notice of her parents or the concerned police authority. Accused No.2-Shailaja has misled the complainant. At her instance, the prosecutrix who was under her care and custody has not revealed the true fact and on the other hand given a false version as though the offence was committed by unknown person, outside the house.
6. Learned counsel for the petitioner submits that during the course of her statement under Section 164 of Cr.P.C. the prosecutrix has not revealed the presence of petitioner/accused No.3. It is relevant to note that at the time of incident, the prosecutrix is aged 10 years 2 months. The Statement of prosecutrix under Section 164 Cr.P.C. is recorded on 08.06.2023. However, on -8- NC: 2023:KHC-D:9571 CRL.P No. 101580 of 2023 31.05.2023, the investigating officer has recorded her statement under Section 161 of Cr.P.C. in question and answer form. Having regard to the fact that the investigating officer was aware of background of the case that he was able to elicit the requisite information by posing the questions. During this statement, the prosecutrix has clearly state the presence of accused Nos.1 and 3 in the house of accused No.2-Shailaja and that they also came to her house in-connection with Jatra. However, the Jurisdictional Magistrate while recording the statement of prosecutrix under Section 164 Cr.P.C has acted like a mute spectator and simply recorded what she said in a single para. Having regard to the young and tender age of the prosecutrix and considering the fact that at the time of incident, she was under the mercy of accused No.2-Shailaja, it could be expected that the prosecutrix might not have revealed the fact of presence of petitioner at the place of incident. However, the entire charge sheet is required to be taken into consideration to ascertain the involvement of petitioner/accused No.3. -9-
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7. Right from the beginning, all the accused persons, tried to mislead the parents of the prosecutrix as well as the concerned police. Therefore, the different versions of incident have come up. However, ultimately the charge sheet makes out a strong prima facie case that at the time of incident, petitioner/accused No.3 was also present and having regard to the fact that accused No.1 is his friend and that petitioner/accused No.3 is having affair with accused No.2, all the accused have tried to conceal the incident. Only after the prosecutrix suffered pain and was taken to the hospital, the fact of incident has come to light. After the doctor who treated the prosecutrix at Chikkodi Government hospital advised to file a complaint, the mother of prosecutrix lodged the complaint based on the first version given by the prosecutrix. However, only after the investigating officer started probing, the fact of accused No.1 having sexual assaulted the prosecutrix and both petitioner/accused No.3 and accused No.2 trying to conceal the matter to save accused No.1 came to light.
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8. Having regard to the fact that complainant, prosecutrix and her relatives are in vulnerable condition and looking to the conduct of the accused persons, it is evident that they are in dominating position. In the circumstance, in the event of granting bail the possibility of the petitioner/accused No.3 threatening and tampering with witnesses cannot be rolled out, especially when the prosecutrix is just aged 10 years 2 months when the incident took place. For the above reasons, this Court is of the considered opinion that the petitioner/accused No.3 is not entitled for the bail and accordingly, the following:
ORDER Petition filed under Section439 Cr.P.C. by petitioner/accused No.3 is rejected.
Sd/-
JUDGE AC List No.: 1 Sl No.: 23