Karnataka High Court
Sri.Mohammed Shafiq S/O. Mohammed ... vs State Of Karnataka on 18 September, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18th DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
Criminal Petition No.101005 of 2020
Between
Sri. Mohammed Shafiq,
S/o Mohammed Rafiq,
Age: 25 years, Occ: Coolie,
R/o: Parthanahalli,
Tal: Athani, Dist: Belagavi.
Now R/o: Mouratkia, Post: Haravankal,
Taluk: Malihabad, Dist: Lacknow,
State: Uttar Pradesh. ...Petitioner
(By Sri. Rajendra Patil, Advocate, for Sri Srinand A.
Pachhapure, Advocate)
And
State of Karnataka,
Through Athani Police Station,
Now rep. by State Public Prosecutor,
High Court of Karnataka, Dharwad,
Bench at Dharwad. ...Respondent
(By Smt. Seema Shiva Naik, HCGP)
This Criminal Petition is filed under Section 439
of Cr.P.C. praying to grant bail to the petitioner in Crime
No.44/2019 (S.C. No.214/2019) pending on the file of
Court of III Additional District and Sessions Judge,
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Belagavi registered for the alleged offences punishable
under Section 363, 366A, 376(i), 376(n) of IPC and
Sections 4 and 6 of the POCSO Act, 2012, by the
respondent Athani Police Station.
This Criminal Petition coming on for Orders this
day, the court made the following:
ORDER
This petition is filed by the accused 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.44/2019 of Athani Police Station, registered for the offences punishable under Sections 363, 366A, 376(i), 376(n) of the Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act', for brevity), which is pending in S.C. No.214 of 2019 on the file of the III Additional District & Sessions Judge, Belagavi.
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2. The case of the prosecution is that the father of the victim girl lodged a complaint on 17.02.2019 alleging that the victim girl is his daughter aged 14 years and she is studying in VIII Standard in Government School and she goes to school by walk. It is further alleged that on 20.11.2018, at about 8.00 a.m., he went to coolie work as usual and his wife went to graze buffaloes and their daughter was in the house. After finishing their work, he came back to the house at 5.00 p.m., and so also his wife but their daughter was not seen in the house. It is further alleged that he and his wife thought that their daughter might have gone to her friends house and would come back. They waited till night, but their daughter did not turn back. The complainant and his wife searched for their daughter in the near by vicinity, but could not trace her. On the next day, they, along with their relatives, searched for the victim girl in the village, but could not find her. Giving the physic of the victim, a complaint came to be 4 lodged against unknown persons for kidnapping on 17.12.2019 and the same came to be registered in Crime No.44 of 2019 for the offence punishable under Section 363 of the IPC. The victim girl was traced by the complainant and his son on 30.04.2019 in a shed in rented premises near the bus-stand in Gadag. The statement of the victim girl was recorded on 01.05.2019. The petitioner-accused was arrested on 03.05.2019. The Investigating Officer, after completion of the investigation, has filed the charge sheet for the offences punishable under Sections 363, 366A, 376(i) and 376(n) of the IPC and Sections 4 and 6 of the POCSO Act. The petitioner had filed a bail application before the Trial Court and the same came to be rejected. Therefore, the petitioner is before this Court seeking bail.
3. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State.
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4. Learned counsel for the petitioner has submitted that though the victim girl went missing on 20.11.2018, the complaint came to be lodged on 17.02.2019 against unknown persons nearly after three months and thus there is a delay in filing the complaint. It is his further submission that the victim has been traced by her father and his son on 30.04.2019. It is his further submission that even though the victim has stated regarding sexual assault against the petitioner- accused in her statement recorded by the police under Section 161 of Cr.P.C., she has not stated anything about the sexual intercourse in the statement recorded by the Magistrate under Section 164, but has stated that the petitioner-accused gave trouble when she was with him. It is his further submission that as per the school records, the date of birth of the victim girl is 24.05.2006, but her skeletal age is between 16 to 18 years and dental age is 15 to 17 years. It is his further submission that merely because the petitioner is from 6 the State of Uttar Pradesh, his prayer for bail cannot be rejected on that ground. On this point, the learned counsel places reliance on the decision in the case of Motiram and Others Vs. State of Madhya Pradesh reported in (1978) 4 SCC 47. It is his further submission that the petitioner is ready to furnish the surety and abide by the conditions to be imposed by this Court. With these, he prayed for allowing the petition.
5. Per contra, learned High Court Government Pleader submitted that the petitioner-accused is a married man having wife and children and he is from Uttar Pradesh. It is her further submission that the victim girl was aged about 12 years 6 months as on the date of the incident and her date of birth as per the school records is 24.05.2006. It is her further submission that the victim girl in her statement recorded by the Police under Section 161 of Cr.P.C. has specifically stated regarding the forcible sexual intercourse committed on her by the petitioner-accused. 7 It is her further submission that even though the victim girl has not stated anything about the forcible sexual intercourse in her statement recorded under Section 164 of Cr.P.C., she has stated about the trouble given by the petitioner-accused from which it could be inferred that the victim was troubled by sexually assaulting her. It is her further submission that the doctor who examined the victim girl has noted that hymen is ruptured. It is her further submission that the accused being a married man having two children has exploited the girl for his sexual desire. It is her further submission that, if, the petitioner is granted bail, he will tamper the prosecution witnesses and flee from justice. With this, she prayed to dismiss the petition.
6. Having regard to the submissions made by the learned counsel for the petitioner and the learned High Court Government Pleader, this Court has gone through the charge sheet records. As per the school 8 records collected by the Investigating Officer, the date of birth of the victim girl is 24.05.2006. As per the doctor's opinion, the skeletal age of the victim girl is 16 to 18 years and the dental age is 15 to 17 years. Taking into consideration all these aspects the victim girl would still be a minor even as on the date of the incident. The doctor, who has examined the victim girl has noted that the hymen of the victim girl is ruptured. The victim girl, in her statement under Section 161 recorded by the Police, has specifically stated regarding the forcible sexual intercourse committed on her by the petitioner- accused, when she stayed with him and also in her house when she was alone. The petitioner being a married man having wife and two children has sexually exploited the victim girl aged about 12 years. The petitioner-accused is a resident of Uttar Pradesh and the apprehension of the prosecution that if he is granted bail, he will flee to Uttar Pradesh cannot be ignored. On perusal of the entire charge sheet papers there are 9 sufficient material and a prima facie case against the petitioner for the offence alleged against him. The petitioner has not made out any grounds for grant of bail.
In the facts and circumstances of the case and submissions of the counsel, this Court is of the view that there are no valid grounds for granting bail. Hence, the petition is rejected.
Sd/-
JUDGE Kms