Karnataka High Court
Shashikant Jyotiba Nirmalkar vs The State Of Karnataka on 27 November, 2017
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION NO.102465/2017
BETWEEN
SHASHIKANT JYOTIBA NIRMALKAR
AGE:20 YEARS, OCC:GOUNDI,
R/O. SANGAMESHWAR,
TQ:KALAGHATAGI, DIST:DHARWAD.
... PETITIONER
(BY SRI. K.L.PATIL, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH KALAGHATAGI POLICE STATION,
REPRESETNED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD BENCH,
DHARWAD.
... RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 OF CR.P.C., SEEKING TO GRANT BAIL TO THE
PETIITONER IN KALAGHATAGI POLICE STATION CRIME
NO.179 OF 2017 WHICH IS NUMBERED AS SPL. S.C.
NO.22 OF 2017 ON THE FILE OF II ADDL. DISTRICT AND
SESSIONS AND SPL. JUDGE, DHARWAD REGISTERED FOR
OFFENCES PUNISHABLE UNDER SECTION 376 OF IPC AND
SECTIONS 4 AND 6 OF THE POCSO ACT, 2012.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
This criminal petition is filed by the petitioner under Section 439 of the Code of Criminal Procedure in connection with Kalaghatagi P.S. in Crime No.179/2017 for offences punishable under Section 376 of the Indian Penal Code, 1860, beside Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012. Since from the date of his arrest, the petitioner is in judicial custody. Therefore, the learned counsel for the petitioner is praying for enlargement of the petitioner on regular bail among the grounds urged therein.
2. The brief facts of the case are that on filing of the complaint by the complainant, a case came to be registered before the Police, alleging that the complainant had been to his daughter's marriage at Sangameshwar and he informed by his sister Gangu that the accused had made Soniya pregnant by saying that he had love affairs with her. On knowing the said :3: fact that the victim said to be six months pregnant, she informed that the accused allegedly used to follow her while she was going to the school and insisting her to love him. On December 15th when the mother of the complainant was not present in the house, the accused allegedly came to the house of victim and made the victim fall on the floor and had physical contact with her forcibly. On the same month, when nobody was present in the house, the accused had forcible sexual intercourse with the victim for 5 to 6 times. The victim is aged about 17 years, she became pregnant, it transpired in the complaint filed by the complainant before the Police, as where the case in Crime No.179/2017 came to be registered and thereafter proceeded with the case for investigation.
3. Heard the learned counsel for the petitioner and the learned HCGP for the respondent - State.
4. Whereas, the learned counsel for the petitioner during the course of arguments contended :4: that the accused as well as the victim said to be aged 17 years, had lover affairs with each other. Because of that love affair, they had physical contact and it is not on force made by the accused and same has been borne out in the statement said to be recorded by the JMFC I Court, Hubli on 22.05.2017. The Investigating Officer laid the charge sheet against the accused in Special S.C. No.22/2017 pending on the file of the II Addl. District and Sessions and Special Judge, Dharwad against the accused for the offence punishable under Section 376 of IPC, besides Sections 4 and 6 of the POCSO Act. Subsequent to filing of the complaint by the complainant before the Police against the accused for the physical contact with the victim and also made her to become pregnant that the elderly persons also discussed about that the victim became pregnant, but the concerned persons, Dharwad Child Protection Unit came and conducted counseling on the victim and since they found out that :5: she was six months pregnant, they got her admitted to KIMS Hospital for immediate medical attention. The accused did not have sexual intercourse with the victim as there was love affair between them and the same has been borne out in the statement recorded by the JMFC I Court, Hubli. Apart from that, it is further submitted that the Investigating Officer laid the charge sheet against the accused by recording the statement of witnesses and also conducting the mahazar. Therefore, the accused is not required for the investigating agency in any further for the alleged offences. The accused is in judicial custody since from his arrest. It is further contended that the accused by occupation is a goundi and he is the only bread winner in the family and if the accused is kept behind the bar for a longer period, then the family of the accused will loose the bread winner and will be ruined in the society. It is further contended that the accused is ready to abide by any terms and conditions imposed :6: by this Court, while granting bail to him. Therefore, the learned counsel for the petitioner on all these grounds prayed to enlarge the petitioner on bail.
5. Per contra, the learned HCGP for the respondent - State vehemently contended that the victim is aged 17 years, as the accused had developed love affairs with the victim. It is further contended that the victim is the minor and also school going student, but the accused who had sexual intercourse with the victim, despite of resistance made by her and same has been seen in the materials available i.e., in the complaint as well as the FIR recorded by the Police. During the course of investigation, it is seen that the victim had become pregnant that the accused had physical contact with the victim. Subsequent to registration of crime, the Investigating Officer laid the charge sheet against the accused in Special S.C. No.22/2017. The women organizer who had said to be made admit the victim in KIMS Hospital and came to :7: know that she became pregnant and also she is the minor and same has been revealed in her statement dated 22.05.2017 said to be recorded by the JMFC I Court, Hubli, wherein she has specifically stated in her statement that since a year she was in love with the accused. In the month of December that the accused as well as victim had physical contact. Whereas in the same month again the accused came to her house when there was nobody present, he had physical contact with her against her will. All these facts are borne out in the statement of the victim. The statement is inconformity with the allegation made in the complaint as well as the reflection made in the FIR and also the charge sheet laid by the Investigating Officer relating to the case in Crime No.179/2017, as wherein the Investigating Officer recorded the statement of witnesses and also conducted the mahazar and as where the accused said to be facing of trial for the heinous offences. There is no dispute :8: about the victim aged about 17 years and there is no dispute that the victim and the accused had love affair. Because of love affair, they had physical contact and the victim became pregnant. On all these grounds, the learned HCGP prayed to reject the bail petition, as the petitioner does not deserve the bail, as sought for.
6. Having regard to the contentions taken by the learned counsel for the petitioner as well as the learned HCGP for the respondent - State relating to the case in Crime No.179/2017, it is said that the complainant had a daughter, Umashree and wherein he had been to Sangameshwar for attending her marriage. By that time, his sister Gangu had given information saying that the petitioner being accused who made the victim Soniya pregnant as he was in love with the victim. But on enquiry made with the victim, she informed that the accused allegedly used to follow her, while she was going to the school and :9: insisting her to love him. It is also seen that on 15th December, when the mother of the complainant was not present in the house, the accused allegedly came to the house of the victim and made the victim fall on the floor and had sexual intercourse forcibly. However, it is also seen that on the same month, again the accused, when there was nobody present in the house of the victim, he had been to the house and had forcible sexual intercourse with the victim for 5 to 6 times. The victim being aged about 17 years, later it came to know that she became pregnant. As this allegation made in the complaint it is inconformity within the statement recorded by the JMFC I Court, Hubli on 22.05.2017, wherein the victim had been secured by the Women Organizataion and conducted counseling on the victim and they came to know that she was six months pregnant and they got her admitted to KIMS Hospital for immediate medical treatment.
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7. Having gone through the entire materials available on record i.e., the complaint, FIR and the charge sheet in Special S.C. No.22/2017 relating to the case in Crime No.179/2017 are concerned, it is said that the accused aged about 20 years, he had a love affair with the victim and he had physical contact with the victim, due to which the victim became pregnant. Whereas, this ground taken by the learned counsel for the petitioner, it is said that there are no substances in the contention of the learned counsel for the petitioner in seeking the relief of bail. Having regard to the heinous offences said to have committed by the accused and also made the victim pregnant are concerned, it is said that if the accused is supposed to be released on bail, certainly there shall be an adverse impact on the society.
Hence, for the aforesaid reasons and as well as in the circumstances of the case, I am of the considered opinion that the petitioner does not deserve the bail : 11 : as he sought for. Accordingly, I proceed to pass the following:
ORDER The bail petition filed by the petitioner under Section 439 of Cr.P.C. is hereby rejected.
Sd/-
JUDGE Rsh