Karnataka High Court
Sharukhan vs The State Through on 5 February, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION NO.200042/2020
C/W
CRIMINAL PETITION NO.200069/2020
In Crl.P.No.200042/2020
Between:
Sharukhan S/o Moulana Sab Tegartippi
Age: 22 years, Occ: Coolie
R/o Malkhed village
Tq: Sedam, Dist: Kalaburagi-585222
... Petitioner
(By Sri Basavaling Nasi, Advocate)
And:
The State through Grameen P.S.
Represented by SPP, High Court
At Kalaburagi Bench - 585102
... Respondent
(By Sri Mallikarjun Sahukar, HCGP)
This criminal petition is filed under Section 439 of
Cr.P.C. praying to allow the petition and release the
accused No.2/petitioner on bail in bearing Crime
Crl.P.No.200042/2020
C/w Crl.P.No.200069/2020
2
No.52/2019 of Vijayapura Women Police Station at
Vijayapura for the offence under Section 366(A), 342, 376,
384 read with Section 34 of IPC and Section 5(L), 6, 16,
17 of POCSO Act and Section 3(1) (w)(i)(ii) O, 3(2) (5a) of
SC/ST Act pending on the file of II Addl. Sessions Judge at
Vijayapura.
In Crl.P.No.200069/2020
Between:
Sri Faijal S/o Jafarkhan Khan
Age: 20 years, Occ: Labour
R/o Mominpur Chincholi
Dist: Kalaburgi - 585101
... Petitioner
(By Sri S.S.Mamadapur, Advocate)
And:
The State of Karnataka
Through Women's PS.
Vijaypur, Rep. by its State Public
Prosecutor, Advocate General's
Office, High Court Building
Kalaburagi - 585107
... Respondent
(By Sri Mallikarjun Sahukar, HCGP)
This criminal petition is filed under Section 439 of
Cr.P.C. praying to enlarge the petitioner on bail in
Women's PS Vijaypur Crime No.52/2019 registered for the
offence s punishable under Section 366(A), 342, 376, 384
read with Section 34 of IPC and Section 5(L), 6, 16, 17 of
the POCSO Act and Section 3(1) W(i)(ii), O of the SC/ST
Crl.P.No.200042/2020
C/w Crl.P.No.200069/2020
3
(Prevention of Atrocities) Amendment Act, 2015 pending
on the file of District and Session Judge, Vijayapur.
These petitions coming on for orders this day, the
Court made the following:
COMMON ORDER
The petitioner in Crl.P.No.200042/2020 is accused No.2 and the petitioner in Crl.P.No.200069/2020 is accused No.1 before the respondent - Women's Police Station, Vijayapura in Crime No.52/2019 wherein after completion of investigation charge sheet has been filed against accused No.1 for the offence punishable under Sections 376 and 384 read with Section 34 of Indian Penal Code, 1860 (hereinafter for brevity referred to as `IPC') and under Sections 5(L) and 6 of Protection of Children from Sexual Offence Act, 2012 (hereinafter for brevity referred to as 'POCSO Act') and also under Sections 3(1)(w)(i)(ii) and 3(2)(va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Crl.P.No.200042/2020 C/w Crl.P.No.200069/2020 4 Amendment Act, 2015 (hereinafter for brevity referred to as 'SC/ST Act') and as against accused No.2 for the offence punishable under Section 384 read with Section 34 of IPC and under Sections 16 and 17 of POCSO Act.
2. The summary of the case of the prosecution is that the complainant is the victim girl and as on the date of the alleged offence she was aged sixteen years two months, as such, minor in her age. On 01.07.2019, accused No.3 - Drakshayini who was residing in the said Paying Guest Center at Vijayapur where the complainant was staying, enticed her to go with her to a place called as Maktal in the State of Telangana. On 02.07.2019, in the midnight at 12.40 a.m., she introduced accused No.2 and all of them stayed at Surya lodge by taking two rooms. The victim was kept in one room and accused Nos.2 and 3 stayed in another room. On the same night victim Crl.P.No.200042/2020 C/w Crl.P.No.200069/2020 5 was introduced to accused No.1, who joined them in that place. On the said night, knowing fully well that the victim belongs to scheduled caste, accused Nos.2 and 3 sent accused No.1 to Room No.110 where she alone was staying. In the said room, accused No.1 subjected the victim girl to sexual assault. When the victim revealed the same to accused Nos.2 and 3 on the next day morning, they in turn asked the victim girl to keep quiet and the same act was repeated on the next day night also. In the mean time, accused No.1 had taken several photographs of the complainant in obscene postures. Subsequently, on 05.07.2019, they returned to Kalaburagi and took up rooms in a lodge where CW.12 - Vijaylaxmi joined them. On 06.07.2019, once again they went to Hyderabad, where they booked rooms in a lodge called as Triveni lodge. On 08.07.2019, once again they returned to Kalaburagi and booked two rooms in Crl.P.No.200042/2020 C/w Crl.P.No.200069/2020 6 a lodge. In one room, in the night, where the complainant was once again subjected to sexual assault/rape by accused No.1 and accused Nos.2 and 3 were in the adjoining room and have cooperated accused No.1 to commit the alleged offence. The accused also shown to have taken obscene photographs of the girl and threatened the victim girl that uploading those photographs in social media in case she does not keep quiet and not allow accused No.1 to have sexual intercourse with her. Subsequently, the accused, more particularly accused No.1 continued to harass the victim girl, while she was in Vijayapur for pursuing her studies and staying in a Paying Guest Center. On 27.07.2019, once again accused No.1 joined by accused No.4 went there and forcibly took the girl to a room where accused No.1 wrongfully confined her and subjected to sexual assault. Since the complainant did not yield to their Crl.P.No.200042/2020 C/w Crl.P.No.200069/2020 7 threat and allow accused No.1 to have sexual intercourse with her, accused Nos.1 and 2 telephoned the father of the victim and demanded a sum of `65,000/- from him stating that the said amount was spent by them for taking his daughter i.e., victim girl to Hyderabad and other places. Since the said father expressed his inability to pay the amount, accused Nos.1 and 2 sent the photographs of the girl with accused No.1 to CW.10 and cautioned that in case the amount is not paid, they would send some more photographs with more obscene gestures in them. After completion of the investigation, the police have filed charge sheet for the alleged offences as observed above.
3. The learned counsel for accused No.2 in his argument submitted that there is no allegations made as against accused No.2 in the alleged statement of victim girl recorded under Section 164 of Code of Crl.P.No.200042/2020 C/w Crl.P.No.200069/2020 8 Criminal Procedure (hereinafter for brevity referred to as `Cr.P.C.'). Merely because accused No.2 was said to have been staying in another room of the said lodge that itself cannot be held that he too was the party in the alleged crime. The learned counsel further stated that accused Nos.3 and 4 have already been enlarged on bail, as such, considering fact that there is no heinous act is alleged against accused No.2/petitioner, he to be enlarged on bail on the ground of parity.
4. The learned counsel for accused No.1 in his argument submitted that there is no consistency in the statement of the alleged victim girl. She has given different versions in her statement under Section 161 of Cr.P.C. as well under Section 164 of Cr.P.C. There is no material to show that there was forcible sexual intercourse between accused No.1 and the girl. The medical report does not support the case Crl.P.No.200042/2020 C/w Crl.P.No.200069/2020 9 of the prosecution. He submitted that prosecution has neither collected birth certificate of the victim girl nor produced any such certificates or documents to show the date of the birth of the victim girl, except her alleged date of birth entered in the college records. Finally stating that accused No.1 is only son of his parents and has got responsibility to maintain his entire family, the learned counsel prays for allowing the petition.
5. The learned High Court Government Pleader who has filed his common statement of objection for both petitions has in his argument submitted that the medical report supports the case of the prosecution since it does not say that the girl was not subjected to sexual intercourse. The accused had snapped obscene photographs of accused No.1 with the victim girl and the same have been recovered at the instance of accused No.1. He also submits that Crl.P.No.200042/2020 C/w Crl.P.No.200069/2020 10 call detail records have been secured by the Investigating Officer, which also shows that accused Nos.1 and 2 have made telephone call to the victim's father over the phone and demanded money from him. He also submits that the Investigating Officer has collected sufficient materials to prove the guilt of the accused/petitioners and the offence alleged against them stand on a higher pedestal compared to the other accused, as such, principle of parity is not applicable. The learned High Court Government Pleader prays for dismissal of the petitions.
6. A perusal of the charge sheet material placed before this Court at this stage and prima facie would go to show that before accused No.1 could enter the alleged scene of the incident, it was accused Nos.2 and 3 who were already in the company of the complainant. The complainant/victim girl appears to have stated that since accused No.3 was a known girl Crl.P.No.200042/2020 C/w Crl.P.No.200069/2020 11 to her and who was residing in Paying Guest Center, where the victim girl staying, she believed words of said girl and joined her. Accused No.2 was said to be paramour to accused No.3 and accordingly the said accused was also introduced to the complainant. It further appears to be stated that it is through accused Nos.2 and 3, accused No.1 entered the scene, when the victim girl said to be alone in a room of the lodge, in which lodge, other two accused i.e., accused Nos.2 and 3 were also stated to be staying. Accommodation for a room in the lodge also appears to have been made at the instance of accused Nos.2 and 3. As such, entry of accused No.1 as could be gathered at this stage to the place of the incident was first led by accused No.2 and 3 which has further developed into various acts of alleged sexual intercourse by accused No.1 with the complainant.
Crl.P.No.200042/2020C/w Crl.P.No.200069/2020 12
7. It also cannot be ignored at this stage that when the alleged victim girl is said to have been revealed to accused Nos.2 and 3 about accused No.1 subjecting her to sexual assault in the room of the lodge on the very next morning of the alleged incident, both accused Nos.2 and 3 said to have been asked the victim girl to keep quiet. The charge sheet papers at this stage would go to show that in the first sexual harassment by accused No.1 upon the victim girl, he has taken several photographs of the victim girl without her knowledge and making use of the same, threatening that same would be published, the victim girl said to have further subjected to various sexual assaults by accused No.1.
Though the alleged statement of the victim girl before the Magistrate under Section 164 of Cr.P.C. does not specifically allege that accused No.2 also subjected her to sexual assault, however, on reading Crl.P.No.200042/2020 C/w Crl.P.No.200069/2020 13 of the said statement in its entirety, there appears some cooperation of accused No.2 in accused No.1 committing the act of sexual assault at various places on various dates against the victim girl. However, it cannot be ignored at this stage that commission of offence under Section 376 of IPC and under Section 5(L) of POCSO Act is confined only against accused No.1, however, the allegation of offence under Sections 16 and 17 of POCSO is levelled against accused No.2.
8. It also cannot be ignored at this stage that the victim girl said to have been examined by the doctor on 10.08.2019. She appears to have given history and recording of the history as given by the patient is certified, which is produced by accused No.2 along with the petition. In the said history, the victim shown to have taken the name of not only accused No.1 but, also accused No.2. Further, the said history Crl.P.No.200042/2020 C/w Crl.P.No.200069/2020 14 as given by the patient before the doctor shown that the girl has given a summary of the account as to what transpired at various places through involvement of accused Nos1 to 3 and how sexual intercourse subjected by accused No.1. Though the medical examination of the victim dated 20.08.2019 shows that the doctor has opined that signs of recent penetration absent, but, by that itself it cannot concluded that the girl was not subjected to any sexual act. Even according to the girl, the alleged incident of sexual assault has happened as early as on 04.07.2019 and continued till 09.07.2019, in the first leg and thereafter it has once again reoccurred on 27.07.2019 in the night, whereas she was subjected to medical test after she completing menstrual cycle only on 20.08.2019. In such situation, it cannot be expected that the medical report and should have stated about presence of 'recent penetration sign'. Therefore, the contention of Crl.P.No.200042/2020 C/w Crl.P.No.200069/2020 15 learned counsel for accused No.1 that the medical report does not favour the victim girl also cannot be accepted in toto at this stage.
9. Added to the above, the contention of learned High Court Government Pleader is that at the instance of accused No.1 a cell phone was recovered wherein the obscene photographs of the girl with accused No.1 were taken and the same also cannot be ignored. The learned High Court Government Pleader further submits that the Investigating Officer has collected call detail records to show that both accused Nos.1 and 2 have contacted the father of the victim girl and demanded for money by threatening that they would upload her daughter's photo with accused No.1 in social media which also cannot be ignored at this stage. As such, even though the alleged offence of rape punishable under Section 376 of IPC and offence under Section 5(L) of POCSO Act is only against Crl.P.No.200042/2020 C/w Crl.P.No.200069/2020 16 accused No.1 and as against accused No.2, it is only the offence punishable under Sections 16 and 17 of POCSO Act and the offence under Section 384 read with Section 34 of IPC are levelled, by that itself it cannot be said that atleast accused No.2 deserve his enlargement on bail. Taking note of the totality of the circumstances of the case as analyzed above, it cannot be ignored at this stage the involvement and cooperation of accused No.2 in commission of crime by accused No.1. For these reasons and also considering the apprehension of the prosecution that in case if the present petitioners are enlarged on bail, they would flee from justice, I am of the view that the petitioners in both the petitions do not deserve to be enlarged on bail.
Accordingly both the petitions stand dismissed.
Sd/-
JUDGE Srt