IJAZKHAN S/O AYUBKHAN SHIVALLI v. STATE OF KARNATAKA
2016-09-07
ARAVIND KUMAR
body2016
DigiLaw.ai
ORDER : Petitioner, who has been arraigned as sole accused in Crime No.153 of 2015 by Dharwad Town Police Station for the of fence punishable under Section 366A of the Indian Penal Code, is before this Court seeking for grant of bail. 2. It is the case of prosecution that a complaint came to be lodged by one Sri. Mohammad Rafiq Makandar on 28th November 2015 alleging that, on 27th November 2015 at about 3.00 p.m., complainant had gone outside the shop and had left his daughter alone and by the time he returned, she was not seen in the shop and on enquiring with the workers, they had informed him that his daughter was talking to accused, who had come in an auto-rikshaw. Hence, alleging that petitioner had kidnapped his daughter with an intention to have sexual intercourse with her, complaint came to be lodged. It is further stated that complaint was not lodged immediately, since they were searching for her and to find whereabouts of his daughter and as such, on the next day i.e., on 28th November 2015, complaint had been lodged. On the basis of said complaint lodged, investigation has been taken up and accused was apprehended along with the victim at 9.00 p.m. on 05th December 2015 and on conclusion of investigation, charge-sheet has been f i led against petitioner. Seeking for being enlarged on bail, petitioner is before this Court. 3. I have heard the arguments of Sri. T.R. Patil, learned counsel appearing for petitioner and Sri. Praveen K.Uppar, learned High Court Government Pleader appearing for the respondent – State and perused the material on record. 4. It is the contention of Sri. T.R. Patil learned counsel appearing for petitioner that there is delay in lodging the complaint and the same is not explained with cogent reasons; the statement of the victim recorded on 05th December 2015 and the statement recorded under Section 164 of the Code of Criminal Procedure, 1973 on 09th December 2015 are at variance and there is delay of four days in recording the statement under Section 164 of Cr.P.C. which runs into eight pages, whereas the statement recorded before the investigating officer is only two pages and this would clearly indicate that it is clear case of improvisation.
He would also submit that victim girl has stated before the doctor, who examined her prior to the alleged incident i.e., even 15 to 20 days back itself, the accused had sexual intercourse with her at his house when she went to give him money. She has also stated that she was engaged three years back which are inconsistent with one another. As such, he prays for petitioner being enlarged on bail. 5. Per contra, learned High Court Government Pleader, appearing for respondent-State opposing the grant of bail would submit that offence alleged against petitioner is heinous and he had kidnapped a minor girl and raped her consistently during their stay at Ahmedabad and Mumbai and as such, he prays for rejection of the petition. 6. Having heard the learned counsel for both parties and on perusal of material on record, it would indicate that father of the prosecutrix — victim had lodged a complaint on 28th November 2015 alleging that petitioner had kidnapped his daughter for ulterior purpose on 27th November 2015. Thus, complainant being aware of the incident as well as being aware of the fact that petitioner had taken his daughter did not complain to the police immediately. Hence, delay in lodging the complaint requires to be explained by the prosecution during the course of trial. That apart, the victim girl has alleged that accused had morphed her photographs and was blackmailing her and as such, she has alleged that she was forced to accompany the accused on 27th November 2015. The charge-sheet material would indicate that victim girl had stayed with accused at a lodge at Ajmer for one day and thereafter, had continued to stay in the said room at Ajmer for three days. Subsequently, according to the victim, they went to Udaiapur and stayed there for one day and from Udaiapur, they proceeded to Mumbai. At no point of time, the victim girl has raised alarm or hue and cry. In fact, in the statement made by her before the doctor, who examined her on 05th December 2015, she has stated that she had not only handed-over the gold ornaments to accused on 26th November 2015, but she had also handed-over four sets of her clothes to accused person. 7.
In fact, in the statement made by her before the doctor, who examined her on 05th December 2015, she has stated that she had not only handed-over the gold ornaments to accused on 26th November 2015, but she had also handed-over four sets of her clothes to accused person. 7. The chain of events, namely, her continuous friendship with accused, not raising any alarm despite workers’ presence in the shop of her father when accused called upon her to accompany him on 27th November 2015 and keeping quiet without raising any alarm even while she was travelling with him from 27th November 2015 to 05th December 2015 are facts which require to be thrashed out during the course of trial. That apart, medical report available on record does not indicate that there has been any sexual assault on the victim girl. The doctor has also opined her age is around 17 years. 8. Keeping all these aspects in mind and the fact that the statements made by the victim girl before the jurisdictional police is running into 02 pages as against her statement before the Magistrate running into 08 pages as also the delay of one day in filing complaint would cumulatively sway in the mind of this Court to grant the prayer sought for by the petitioner. However, to allay the apprehension expressed by prosecution that petitioner may indulge in either threatening the prosecution witnesses or induce them, this Court is of the considered view that if stringent conditions are imposed, it would suffice and al lay such fear. In the light of these facts, this Court is of the considered view that petitioner is entitled for the relief sought for. 9. Hence, I proceed to pass the following: ORDER Criminal Petition is hereby allowed. Petitioner is ordered to be enlarged on bail in Crime No.153 of 2015 registered by Dharwad Town Police Station, on executing a personal bond for Rs. 1,00,000/- (Rupees One Lakh Only) with one surety for the like-sum to the satisfaction of the jurisdictional Court and subject to following conditions: i. Petitioner shall appear before the jurisdictional Court on all the dates of hearing without fail, unless there are exceptional circumstances; ii. Petitioner shall not leave the jurisdiction of the Court without express permission; iii. Petitioner shall not tamper or terrorise or induce the prosecution witnesses in any manner; iv.
Petitioner shall not leave the jurisdiction of the Court without express permission; iii. Petitioner shall not tamper or terrorise or induce the prosecution witnesses in any manner; iv. Petitioner shall appear before Dharwad Town Police every week i.e., on every Thursday between 10.00 a.m. and 5.00 p.m. to mark his attendance till the conclusion of trial; In the event any of above conditions being violated by the petitioner, prosecution would be at liberty to seek for cancellation of his bail.