Karnataka High Court
Sri. Huligesh @ Hulagappa S/O ... vs The State Of Karnataka, on 12 March, 2020
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.100282/2020
BETWEEN:
SRI. HULIGESH @ HULAGAPPA S/O.
BHARAMAPPA GUDIHOLA,
AGE 19 YEARS, OCC: COOLIE,
R/O. HANUMASAGAR, TQ. KUSHTAGI,
DIST. KOPPAL.
...PETITIONER
(BY SRI. SANTOSH B. MALAGOUDAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
THROUGH PSI HANUMASAGAR POLICE STATION,
RETPD. BY ADDL. SPP,
STATE PUBLIC PROSECUTOR OFFICE,
HIGH COURT OF KARNATAKA,.
DHARWAD BENCH
...RESPONDENT
(BY SMT. SEEMA SHIVA NAIK, HCGP)
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 HANUMASAGAR P.S.CRIME NO.57/2019
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 363, 376
OF IPC AND SECTION 4 OF POCSO ACT, 2012 NOW PENDING
ON THE FILE OF PRL. DISTRICT AND SESSIONS
2
JUDGE/SPECIAL JUDGE AT KOPPAL IN SPL SC (POCSO)
37/2019.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard the petitioner's counsel and the learned HCGP appearing for the State.
2. The factual matrix of the case is that, the complainant in the complaint makes the allegation that, she was having acquaintance with the petitioner and in the month of December, 2018, this petitioner took her to Cinema and thereafter he took her to a lodge and had sexual intercourse against her wish. The same was not disclosed, but subsequently she had approached the child care centre and thereafter the complaint was given and she was subjected to medical examination.
3. The police have registered the case against the petitioner for the offences punishable under Section 363, 376 and Section 4 of POCSO Act. It is the 3 contention of the petitioner in his bail petition that, he is innocent and has been falsely implicated in the case. There is an inadvertent delay of six months from the date of alleged rape and further contend that, it could be seen from the victims statement recorded under Section 164 of Cr.P.C. that she was having a love affair and during the stay with the petitioner, she never resisted to have sexual intercourse nor she has tried for help to rescue. There are material contradictions in the complaint and also in the 164 statement and also there is no any material before the Court that, it is a forceful intercourse and hence, the offences punishable under Sections 363 and 376 of IPC and Section 4 of POCSO Act, does not attract.
4. Per contra, the counsel appearing for the State would contend that, the victim is aged about 13 years and the same is not in dispute and the fact that he took her to a lodge and had sexual intercourse is 4 also not in dispute and only the contention of the petitioner is that, it was not forceful act and having taken note of the age of the victim as 13, the question of consent does not arise and there is a prima face material to believe the case of the prosecution and hence, no grounds are made out to grant the bail.
5. Having heard the arguments of the petitioner's counsel and the learned HCGP and on perusal of the records, the complainant in the complaint specifically made allegation against this petitioner that he had forceful sexual intercourse in a room and in 164 statement also she says that after watching the movie he took her to lodge and he gave water and thereafter she cannot tell what had happened, but both were there in the room. No doubt there is a contradiction in the Statement of 164 and in the complaint and in the medical report which is produced before the Court, it is mentioned that no obvious evidence of forceful sexual 5 intercourse. It has to be noted that, the incident was taken place in the month of December and complaint was given in the month of June, and she was subjected to sexual act in the month of December and she was subjected to Medical examination in the month of June and Court also cannot expect the medical report of forceful sexual intercourse when she was subjected to medical examination in the month of June. At this stage, the Court has to take note of the age of the victim and she is 13 years old and when she makes specific allegation against the petitioner that he took her to the lodge and had sexual intercourse as against her wish and when the medical report suggests she was subjected to sexual act but no forceful sexual intercourse, it is clear she was subjected to sexual act. When such being the case by taking note of the averments made in the complaint and also the petitioner do not dispute the fact that she was taken to a lodge, but it is contended that it is not forceful sexual 6 act and when such being the facts and circumstances, the question of consent does not arise since she is aged about 13 years.
6. Having considered the material on record, it is not a fit case to exercise the powers under Section 439 of Cr.P.C. to grant bail having taken note of the age of the victim as 13 years and if she gives consent it does not amounts to a consent
7. In view of the discussions made above, this Court proceed to pass the following:
ORDER The bail petition is rejected.
Sd/-
JUDGE *Svh/-