Karnataka High Court
Shri. Mantesh S/O. Raju Nayik vs The State Of Karnataka on 17 October, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
-1-
CRL.P No. 102666 of 2022
c/w CRL.P No. 102668 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF OCTOBER 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 102666 OF 2022
CRIMINAL PETITION NO. 102668 OF 2022
In Crl.P.No.102666/2022
BETWEEN:
SHRI. MANTESH S/O. RAJU NAYIK
AGE. 20 YEARS, OCC. COOLIE,
R/O. NAYINGALAJ,
TAL. CHIKODI, DIST. BELAGAVI-591201.
...PETITIONER
(BY SRI. JAGADISH PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH SANKESHWAR POLICE STATION
R/BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA BENCH
AT DHARWAD 580001.
2. SMT. PREMA W/O. YALLAPPA CHOORI
AGE. 45 YEARS,OCC. HOUSEWIFE,
R/O. BADAWADI, TAL. HUKKERI,
DIST. BELAGAVI-591309
...RESPONDENTS
(BY SRI. PRASHANTH V. MOGALI, HCGP FOR R1.
RESPONDENT NO. 2 SERVED.)
THIS CRIMINAL PETITION IS FILED U/SEC. 439 OF CR.P.C.
SEEKING TO ALLOW THE PETITION AND THE
PETITINER/ACCUSED NO.1 HEREIN MAY BE ENLARGED ON BAIL
-2-
CRL.P No. 102666 of 2022
c/w CRL.P No. 102668 of 2022
IN FIR CRIME NO. 119/20222 DATED 29.05.2022 IN CONNECTION
WITH SANKESHWAR P.S. FOR OFFENCES PUNISHABLE U/SEC.
363, 376(2) (n), 368, 201, 506 OF IPC AND SECTION 4, 6, 17 OF
THE POCSO ACT, 2012.
In Crl.P. No.102668 OF 2022
BETWEEN:
SHRI. RAMCHANDRA ALIAS
RAMSIDDA BALAPPA KOTALI ALIAS POTALI
AGE. 22 YEARS, OCC. COOLIE,
R/O. A/P. KATNYAL, NOW AT NAYINGLAJ,
TAL. CHIKODI, DIST. BELAGAVI.
...PETITIONER
(BY SRI. JAGADISH PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH SANKESHWAR POLICE STATION
R/BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA BENCH
AT DHARWAD 580 001
2. SMT. PREMA YALLAPPA CHOORI
AGE. 45 YEARS, OCC. HOUSEWIFE,
R/O. BADAWADI, TAL. HUKKERI,
DIST. BELAGAVI.591 309
...RESPONDENTS
(BY SRI. PRASHANTH V. MOGALI, HCGP FOR R1.
RESPONDENT NO. 2 SERVED.)
THIS CRIMINAL PETITION IS FILED U/SEC. 439 OF CR.P.C.
SEEKING TO ALLOW THE PETITION AND THE
PETITINER/ACCUSED NO.2 HEREIN MAY BE ENLARGED ON BAIL
IN FIR CRIME NO. 119/20222 DATED 29.05.2022 IN CONNECTION
WITH SANKESHWAR P.S. FOR OFFENCES PUNISHABLE U/SEC.
363, 376(1, 376) (2 (n)), 368, 201, 506 OF IPC AND SECTION 4,
6, 17 OF THE POCSO ACT, 2012.
-3-
CRL.P No. 102666 of 2022
c/w CRL.P No. 102668 of 2022
THESE CRIMINAL PETITIONS COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Criminal Petition No.102666/2022 is filed by accused No.1. Criminal Petition No.102668/2022 is filed by accused No.2. Both the petitions are filed 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.119/2022 of Sankeshwar Police Station, Belagavi district, registered for the offences punishable under Sections 363, 376(1), 376(2)(n), 368, 201 and 506 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Sections 4, 6 and 17 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act', for brevity).
2. The case of the prosecution is that, one Smt. Prema has filed the complaint stating that she is residing with her husband and children including -4- CRL.P No. 102666 of 2022 c/w CRL.P No. 102668 of 2022 the victim girl(victim No.2) and her husband is doing agricultural work and children are prosecuting their studies. It is further stated that, in their colony, another girl (victim No.1) is residing and victim 1 and 2 are good friends. It is further stated that on 27.05.2022, the complainant along with her husband had been to husband's uncle's son's house for a function and victim No.2 was alone at home and when they returned from the function, victim No.2 was not at home and they thought that she might be in victim No.1's house and they went to her house and asked victim No.1's mother about victim No.2 and they learnt that those two victims went to toilet and they have not returned home and the family members of both the families started searching them. A missing complaint came to be filed in Sankeshwar Police Station on 29.05.2022 and it is registered in Crime No.119/2022 for an offence under Section 363 of IPC against unknown persons. It is the further case of the prosecution that both -5- CRL.P No. 102666 of 2022 c/w CRL.P No. 102668 of 2022 the victims went to the Women's Comfort Helpline. Later the said Women's Comfort Helpline handed over the victims to the Sankeshwar Police Station. The age of victim No.1 is 16 years 9 months and during investigation victim No.1 told that she was wandering with victim No.2 in the temple and forest and in the investigation it is revealed that petitioners/accused Nos.1 and 2 had forcible sexual intercourse with victim Nos.1 and 2. The Police after investigation filed charge sheet against accused Nos.1, 2 and others for offences under Sections 363, 376(1), 376(2)(n), 368, 201 and 506 of IPC and Sections 4, 6 and 17 of POCSO Act. Accused Nos.1 and 2 were arrested on 04.06.2022 and they are in judicial custody. Accused No.1 filed Crl.Misc. No.1217/2022 and accused No.2 filed Crl.Misc. No.1216/2022 and both came to be rejected by the learned Additional District and Sessions Judge, FTSC-1, Belagavi by two separate -6- CRL.P No. 102666 of 2022 c/w CRL.P No. 102668 of 2022 orders dated 08.9.2022. Therefore, accused Nos.1 and 2 are before this Court seeking bail.
3. Heard the arguments of the learned counsel appearing for the petitioners and the learned High Court Government Pleader for respondent No.1- State. Respondent No.2 was present physically before the court on the previous date and prayed not to grant bail to the petitioners.
4. Learned counsel for the petitioners would contend that the victim girls went missing on 27.05.2022 and a missing complaint came to be filed on 29.05.2022 against unknown persons for an offence under Section 363 of IPC. It is his further submission that the statements of victim Nos.1 and 2 are recorded on 29.05.2022 and Counselor submitted report with regard to victim Nos.1 and 2 on 31.05.2022 and the victims gave their statement under Section 164 of Cr.P.C. on 02.06.2022. The versions of the victims are different and there are -7- CRL.P No. 102666 of 2022 c/w CRL.P No. 102668 of 2022 material contradictions in their statements. It is his further submission that the doctor who examined victim No.2 has opined that her hymen is in tact and there is no bleeding and no laceration. It is his further submission that in the report of the Counselor there is mention that the victim girls are in love affair with the petitioners/accused Nos.1 and
2. It is his further submission that the victims are of the age of understanding the consequences of their acts. As charge sheet is filed, the petitioners are not required for custodial interrogation. With this, he prayed to allow the petition.
5. Per contra, learned High Court Government Pleader would contend that the date of birth of victim No.1 is 06.08.2005 and victim No.2 is 27.06.2005 as per their SSLC marks card. The Doctor who examined victim No.1 has opined that victim No.1's age is more than 16 years and less than 18 years and her dental age is approximately -8- CRL.P No. 102666 of 2022 c/w CRL.P No. 102668 of 2022 16-17 years and her hymen is not intact and there is old tear. The doctor who examined victim No.2 has opined that her skeletal age is between 16-18 yeas and dental age is 16-18 years and her dental age is 16-17 years, hymen is in tact and there is no tear. It is his further submission that the petitioners/accused Nos.1 and 2 in their voluntary statement have specifically admitted the alleged acts stated in the charge sheet. Charge sheet material show prima facie case against the petitioners/accused Nos.1 and 2 for the offences alleged against them. If the petitioners are granted bail, they will threaten the complainant and tamper the prosecution witnesses and flee from justice. With this, he prayed to reject the petitions.
6. Having regard to the submission made by the learned counsel for the petitioners and the learned High Court Government Pleader, this Court has gone through the charge sheet records. -9- CRL.P No. 102666 of 2022 c/w CRL.P No. 102668 of 2022
7. Date of birth of victim No.2 is 27.06.2005 and victim No.1 is 06.08.2005 as per their school records and SSLC marks card. Both the victims are aged more than 16 years. Accused No.3 is the aunt of victim No.1 and it is alleged that she sent victims Nos.1 and 2 with the petitioners. Victim Nos.1 and 2 in their statement dated 29.05.2022 have stated that they committed mistake. The Counselor in their report has stated that both the victims are having love affair with accused Nos.1 and 2. The Doctor who examined victim No.2 has stated that her hymen is intact and there is no tear, no bleeding and no laceration. The said aspect rules out the allegation of any sexual intercourse by the accused. The doctor, who examined victim No.1 has stated that her hymen is not intact and there is old tear and there is no bleeding and no laceration. The victim girls have stated before the Counselor that they are in love affair with the accused. The victim girls are of the age of understanding the
- 10 -
CRL.P No. 102666 of 2022 c/w CRL.P No. 102668 of 2022 consequences of their acts. As charge sheet is filed, the petitioners/accused Nos.1 and 2 are not required for custodial interrogation.
8. The main apprehension of the prosecution is that if accused Nos.1 and 2 are granted bail, they will threaten the complainant and other prosecution witnesses and flee from justice, can be met with by imposing stringent conditions.
9. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that the petitioners are entitled for grant of bail subject to certain terms and conditions. Hence, I proceed to pass the following:
ORDER Both petitions filed under Section 439 of Cr.P.C. is allowed. Consequently, the petitioners/accused Nos.1 and 2 are ordered to be released on bail in Crime No.119/2022 of Sankeshwar Police Station subject to the following conditions:
- 11 -CRL.P No. 102666 of 2022 c/w CRL.P No. 102668 of 2022
i) The petitioners/accused Nos.1 and 2 shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) each with one surety for the likesum to the satisfaction of the jurisdictional Court.
ii) The petitioners/accused Nos.1 and 2 shall not indulge in tampering the prosecution witnesses.
iii) The petitioners/accused Nos.1 and 2 shall attend the Court on all the dates of hearing unless exempted and co-operate in speedy disposal of the case.
iv) The petitioners/accused Nos.1 and 2 shall not contact the victims either physically or through mobile or through any other electronic mode till disposal of the case registered against them.
Sd/-
JUDGE kmv