Karnataka High Court
Mr. Mastappa Alias Nitin Annappa Naik vs The State Of Karnataka on 9 June, 2022
Author: K. Natarajan
Bench: K. Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9th DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
CRIMINAL PETITION NO.100907/2022
BETWEEN:
MR. MASTAPPA ALIAS NITIN ANNAPPA NAIK
AGED ABOUT 31 YEARS,
OCC: HOTEL WORKER
MAVALLI VILLAGE MURUDESHWAR
TAL. BHATKAL
DIST. UTTARA KANNADA
.. PETITIONER
(BY SRI. P.V. GUNJAL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH MURUDESHWAR POLICE
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD 580 011.
2. MS. SAVITRI RAMA NAIK,
AGED ABOUT 48 YEARS, AGRICULTURAL COOLIE
DOMIMANE KANNADA SCHOOL, MAVALLI 2
MURUDESHWAR 581 421
TAL BHATKAL, DIST. UTTARA KANNADA.
.. RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP.)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C. SEEKING PENDING TRIAL IN SP.C.150/2021 BEFORE THE ADDL.
DISTRICT AND SESSIONS JUDGE FTSC -1 UK KARWAR SPECIAL COURT
FOR CASES UNDER POCSO ACT THIS COURT BE PLEASED TO ENLARGE
THE PETITIONER ON BAIL IN CR.NO.83/2021 REGISTERED BY
MURUDESHWAR POLICE STATION FOR OFFENCES ALLEGED U/S 376, 504
OF IPC AND SECTION 4 AND 6 OF POCSO ACT 2012 AND DIRECT THE
RESPONDENT ACCORDINGLY.
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.83/2021 registered by the Murudeshwar Police for the offence punishable under Sections 376 and 504 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for brevity) and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act', for short).
2. Heard the arguments of the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent No.1/State and also respondent No.2, who appeared 3 before the Court and instructed the Government Pleader to argue the case on her behalf.
3. The case of the prosecution is that, on the complaint of one Savitri-respondent No.2 filed on 04.09.2021, the police registered a case against the petitioner for the aforesaid offences. It is alleged by her in the complaint that she is having a minor daughter aged about 16 years studying in 10th standard. That on 01.09.2021 herself, her husband and her minor daughter were sleeping in the house, at about 11:30 pm the victim was not in the bed and also in the bathroom but her mobile phone was found on the bed and the door was open. They came out and searched for her but could not find her and decided to trace next day. On 02.09.2021 at 05:30 am the victim was found in the back side portion of the house and was in upset mood, she consoled her and asked what had happened. But continuously she was under
depression. The complainant insisted as to what happened, the victim then revealed on 04.09.2021 that on 01.09.2021, at the instance of accused at 11.45 pm she went out of the house and went hear the house of one Jayanat Naik. There he made her to lie 4 down and had forcible intercourse with her. Thereafter, the compliant came to be filed. After registering the complaint, the police arrested the petitioner on 20.09.2021. He was remanded to judicial custody. His bail petition came to be rejected by the learned Sessions Judge. Hence, he is before this Court.
4. Learned counsel for the petitioner contended that the petitioner is innocent of the alleged offence. The complainant is a hearsay witness. The victim herself went to the place of occurrence voluntarily and the petitioner has not dragged her to the place of occurrence and there is no injury on the body except hymen not intact. Hymen may be not intact due to various reasons such as running, cycling and other sports activities. He further contended that the contention of the victim girl cannot be acceptable that the accused threatened and committed rape on her. Investigation is completed and charge sheet is filed. The petitioner is in custody for almost ten months. He is ready to abide any conditions. He would further contend that if the petitioner is kept in jail, he may come in contact with other criminals in the jail and become hardened criminal. Hence, prayed for granting bail.5
5. Per contra, learned High Court Government Pleader for the respondent No.1/State seriously objected the bail petition and contended that the victim has categorically stated in her 164 Cr.P.C. statement that the accused committed forcible intercourse with her and he made her to come by threatening that he would kill her parents. Therefore, she went to the place where the accused committed rape in spite of her resistance which clearly reveal that she was subjected to sexual assault by force. The medical report also reveals that she was subjected to intercourse and her hymen is not intact. She further contended that if the petitioner is granted bail, he may abscond and tamper the prosecution witnesses and may commit repeated offence. Hence, prayed for dismissal of the petition.
6. Having heard the learned counsel for the parties, perused the records.
7. Admittedly, the mother of the victim is the complainant.
The complaint was filed on 04.09.2021 even though the victim returned to the house on 02.09.2021. The complainant has stated that the victim revealed that the accused forcibly committed rape 6 on her twice by making her to lie on the mat in a house belonging to one Jayant naik. The statement of the victim under Section 164 Cr.P.C., she has categorically stated that the accused twice insisted her to marry and love him but she was refusing to marry as she had not attained the age of marriage and the accused also agreed that he would marry her after she attaining the age of majority. That on 01.09.2021, the accused called her repeatedly over phone. She also stated that, the accused threatened that he would kill her parents if she refused to come. Therefore, in order to safeguard the interest of her parents and respect of the family, she went to the place where the accused had called and thereafter on the said night, he made her to lie on the mat and in spite of her resistance, he forcibly made her to lie and committed sexual assault twice on her. Thereafter, at 5.30 am they were awakened and she came back to her house. The accused is also stated to have threatened her not to reveal to anybody otherwise he would kill her parents. Thereafter, she revealed the same to her mother and subsequently, a complaint came to be filed by her mother.
7
8. On perusal of the 164 Cr.P.C. statement of the victim, she has categorically stated that the accused had committed rape on her forcibly. Of course, learned counsel for the petitioner stated that the act by the accused may not be possible without her consent, as there is no physical injury on the body, but the fact remains that the victim is a minor aged about 16 years and her consent or will is immaterial for an offence under Section 376 of IPC and Sections 4 and 6 of IPC, as she is a child within the meaning of POCSO Act and a child aged below 18 years. Hymen is not intact. The police have collected material and sent for FSL. FSL report not yet received. The Doctor has opined that there was sexual assault on the victim as per the clinical examination. Therefore, considering the fact, of course, the petitioner may be the first offender, but if he is released on bail, there is every possibility of absconding from the case and he may also threaten the witnesses are not ruled out.
9. The apprehension of the victims mother, who appeared before the court and informed the Government Pleader that this act should not be repeated to any other girls like her daughter and 8 considering the seriousness of the offence under POCSO Act and Section 376 of IPC, I am of the view that if the petitioner is granted bail, there is every possibility of absconding and tampering the witnesses is not ruled out and committing similar offence are also not ruled out Therefore, the petitioner is not entitled for bail and the petition is liable to be dismissed.
Accordingly, the criminal petition is dismissed.
Sd/-
JUDGE kmv