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2015 DIGILAW 380 (KAR)

Ashok v. State of Karnataka

2015-04-06

G.NARENDRA

body2015
ORDER G. Narendra, J. 1. This petition is filed by the first accused in Crime No. 5/2015 initially registered for the offence punishable under Sections 363, 506 read with Section 34 of IPC and subsequently the offence punishable under Section 376 of IPC came to be included. 2. The case of the complainant is as follows: "That her cousin sister Khadarbi D/o. Yakubsab Bagali having lost her parents she was staying with the complainant and that Khadarbi had completed her P.U. course and the complainant had intended to admit her to some computer course. In the meanwhile, the petitioner who is also a resident of Mevundi village had set up a room and was doing astrology work apart from performing pooja in temple had a daughter by name Shruthi. It is further alleged that the victim and the petitioner's daughter had become friends and taking advantage of the friendship, the petitioner persuaded the victim to join computer course and she was also admitted to the said institution and started to reside in a room at Vijayanagar, Dharwad. But while so, on 26.01.2015, the complainant received a call from her cousin sister/the victim Khadarbi and the said Khadarbi was weeping and is alleged to have stated that she needs help and on being questioned by complainant, the victim has alleged to have stated that she has been taken to an unknown place by Ashok Joshi/the petitioner herein. Agitated complainant, informed her nephew Najeer Ahmed and thereafter they started enquiring about but did not opt to immediately go to the police and 2-3 days thereafter they came to know that Ashok Joshi i.e., petitioner herein and his friends who are also co-accused by name Yamnurappa, Mayannavar and Hanamanthappa had taken 5-6 girls to Bangalore on the promise of getting them job and they went to police station and lodged a complaint for kidnapping her sister. Based on the complaint, crime has been registered for the offence punishable under Section 363 and 506 and subsequently respondent/Police traced the petitioner and victim at Mantralaya in Andhra Pradesh and brought her back to Dharwad. It is also alleged that during the course of investigation, the said Khadarbi/victim is alleged to have stated that the petitioner herein had committed rape against her and thereafter the Investigating Officer has included the charge under Section 376 of IPC. It is also alleged that during the course of investigation, the said Khadarbi/victim is alleged to have stated that the petitioner herein had committed rape against her and thereafter the Investigating Officer has included the charge under Section 376 of IPC. They were secured at Mantralaya on 24.02.2015 and brought to the respondent police station on 25.02.2015 and the petitioner herein was remanded to judicial custody. The victim appears to have recorded a statement under Section 164 of Cr.P.C. before the jurisdictional Magistrate. The said statement is recorded on 26.02.2015. It is urged by the petitioner's counsel that the veracity of the statement requires to be established during trial, as the same has been recorded on the next day on tutoring of her cousin sister and brother. Be that as it may. In this background, the point for consideration of this Court is: "Whether the petitioner is entitled for the relief as prayed for in the petition?" 3. The answer of this Court is in the affirmative for the following reasons: 4. It is seen that as per the complaint it is alleged that the information of the victim being taken away by this petitioner has been conveyed to the complainant on 26.01.2015 whereas in the statement recorded under Section 164 of Cr.P.C., the victim has stated that she was taken away by force on 23.01.2015 itself. In the complaint which is lodged on the information provided by the victim, there is no allegation of the victim being taken away forcibly. Subsequently even as per the complaint, information was received on 26.01.2015 and the version of the complainant is that 2-3 days have spent for collecting information is believed to be true, even then the complaint which is lodged on 11.02.2015 is belated and raises credible doubts about the veracity of the complaint. It is the version of the complainant that the petitioner was named by the victim herself on 26.01.2015 itself. That being so, there is no explanation or justification for the extraordinary delay in lodging the complaint on 11.02.2015. The complainant has stated that she was informed by the victim that she does not know where Ashok Joshi has kept her but in the statement recorded under Section 164 of Cr.P.C., the victim has narrated in detail the time, place and mode of travel and place of stay. The complainant has stated that she was informed by the victim that she does not know where Ashok Joshi has kept her but in the statement recorded under Section 164 of Cr.P.C., the victim has narrated in detail the time, place and mode of travel and place of stay. This again casts a shadow on the version of the complainant and this doubt certainly would go to the aid of the petitioner for grant of relief. It is seen that the victim is aged about 22 years, educated and was also pursuing computer course. The fact remains that she was in the company of the petitioner for more than a month i.e., from 23.01.2015 to 24.02.2015. Apart from the single phone call alleged to have been made on 26.01.2015, there is no narration of any evidence of the victim having tried to escape from the clutches of the petitioner/accused. Even in 164 statement, the mode of transport is narrated as public transport. There is nothing on record nor anything stated by the victim in the course of her deposition under Section 164 statement that she had made any attempt to escape while travelling in a public transport. It is seen that she was taken from Dharwad to Bangalore on 23.01.2015 and journey was night journey. They have traveled on the night of 23.01.2015 to Bangalore and arrived at Bangalore at 5.00 a.m. i.e., they have traveled a distance near 450 km. and it is hard to believe that there were no other person in the bus or that there was no opportunity for the victim to alert any co-passengers. It is also the statement of the victim that on arrival at Bangalore, they stayed for 4 to 5 days in Sudha Lodge in Akkipet. It is also relevant to note that in her deposition, under Section 164she states that once when she raised her voice and threatened the accused, he fell her at feet and begged her. This narration would show the victim had not been confined nor she was dominated by the accused. All these factors cast serious doubt on the version of the prosecution. 5. Learned AGA has placed the medical certificate issued by the KIMS, Hubli. This narration would show the victim had not been confined nor she was dominated by the accused. All these factors cast serious doubt on the version of the prosecution. 5. Learned AGA has placed the medical certificate issued by the KIMS, Hubli. The certificate would disclose that the victim referred to the Hospital on 08.45 p.m. and the doctor has furnished a provisional opinion which states as follows "From the clinical examination I am of the opinion that she is used to the acts like sexual intercourse." The report does not disclose any injury marks nor is it suggestive of any rape. It is also submitted by the petitioner's counsel that the other co-accused have been enlarged on bail. Considering all these facts, this Court is of the opinion that the prayer of the petitioner is liable to be accepted and accordingly, it is accepted. The petitioner shall be released on bail in Crime No. 05/2015 registered by the respondent Hubli-Dharwad Mahila Police. Accordingly, petition is allowed. "(i) Petitioner shall execute a bond for Rs. 50,000/- and furnish two sureties to the satisfaction of the jurisdictional Court. (ii) Petitioner shall not make any attempt to contact the victim or the complainant. (iii) Petitioner shall not tamper with the evidence. (iv) Petitioner shall not leave the jurisdiction of this Court without prior permission of the jurisdictional trial Court." Ordered accordingly.