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2019 DIGILAW 44 (KAR)

Mohammad Ramazan Multani v. State of Karnataka

2019-01-04

H.P.SANDESH

body2019
JUDGMENT : H.P. Sandesh, J. I have heard the arguments of the petitioner's counsel and also the learned H.C.G.P. for the respondent. 2. The factual matrix of the case is that the complainant who is the father of the deceased in his complaint, made a narration that his daughter Alifa was studying in C.L.E. college at Chikkodi, and at that time, this petitioner who was also residing in the same locality was looking at her, following her and unnecessarily talking with her and he was pressuring her to love with him, otherwise, he would not leave her and the said fact was informed to the complainant and immediately, they called him and advised him and in spite of the advise, he did not heed the advise and continued the same, and thereafter, he called the complainant over the mobile and expressed that he would marry her and further threatened to finish of incase complainant obstructed him in this regard. Due to the fear, the complainant disconnected the call. Further, alleged in the complaint that on 10/8/2018 when his daughter was waiting for the bus, at about 9.00 a.m. at Basava Circle, Chikkodi, in order to go to the college and the petitioner came and enquired as to why she is not loving him and he intends to marry her and if she intimate the same to anybody else, he would kill her. However, his daughter was not speaking to anybody in the house and she was depressed. Further, alleged that there is a suspicion regarding the sexual harassment to her and on 14/8/2018, in the morning she told that the petitioner was following her and had the unwanted talks with her and therefore, the complainant told that he would call the petitioner and warn him again. Further, alleged that there is a suspicion regarding the sexual harassment to her and on 14/8/2018, in the morning she told that the petitioner was following her and had the unwanted talks with her and therefore, the complainant told that he would call the petitioner and warn him again. Thereafter in order to prepare for going to the college, his daughter went to the 2nd floor but she did not turn up and immediately he went and verified in the 2nd floor and found that she bolted the room inside and she did not reply and when the complainant saw through the window, he found that she was hanging to the fan and immediately through her another daughter got opened the door, since she was respiring and therefore she was immediately taken to KLE Hospital and unfortunately she lost her breath on 16.8.2018 and hence a complaint is lodged and based on the complaint, at the first instance case has been registered for the offence punishable under sections 376, 306, 506 of IPC and sections 3 and 4 of POCSO Act and the police after the investigation have filed the charge sheet against the accused for the offence punishable under sections 366(A), 376, 305, 506 of IPC and sections 3 and 4 of POCSO Act. 3. The petitioner's counsel, in the petition he has contended that there are no reasonable grounds to believe the theory of prosecution and there are no overtacts attributed to the petitioner and there is no motive or intention and also there are no direct or indirect materials to connect the petitioner with regard to the offence invoked against the petitioner. It is further contended that the police have registered a case on the basis of the version of the complainant on false allegations and in order to invoke the heinous offence of sexual harassment, there is no any material and in the postmortem report it is clearly mentioned that there are no external injuries on the body and the hymen is intact. This clearly goes to show that there is no any attempt of rape or intercourse or otherwise alleged in the complaint. This clearly goes to show that there is no any attempt of rape or intercourse or otherwise alleged in the complaint. It is further contended that the complaint averments goes to show that the deceased was weak, frail mentality, without any fixed mind and there is no mens rea or guilty mind on the part of the petitioner and in the absence of prima facie material, this Court can exercise the powers under section 439 of Cr.P.C. 4. In support of his contention, the counsel also reiterated the grounds urged in the bail petition and further contended and brought to the notice of this Court the postmortem report and further he brought to the notice of this Court that charge sheet has already been filed and no custody requirement is necessary and the petitioner is ready to obey the conditions that may be imposed by this Court. In support of his contention, he also relied upon the judgment of the Apex Court reported in a case between Bhagirathsinh Judeja vs. State of Gujarat, (1984) AIR SC 372, with regard to section 439 of Cr.P.C. and in this judgment the Apex Court held that it is well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the direction granted in his favour by tampering with evidence. If there is no prima facie case, there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. 5. 5. The counsel also relied upon the judgment of this Court passed in Crl.P.No.3378/2016 in a case between Sri Pramod @ Pramod Reddy vs. the State of Karnataka and this Court has observed in paragraphs No.3 and 4 that in the absence of material evidence to demonstrate that there was rape committed and that victim had committed suicide by setting herself ablaze and the petitioner's involvement in committing rape on her would have to be demonstrated at the stage of a full fledged trial. 6. The counsel also brought to the notice of this Court the judgment of Madras High Court in Mani vs. State, the order passed in Criminal O.P. No.10096/2014 and brought to the notice of this Court paragraph No.49 with regard to taking of decision to commit suicide and with regard to the mental status of the victim who commits suicide. 7. Per contra, the HCGP in his arguments contends that, whenever the victim gets late, she used to visit the house of her uncle whose statement has been recorded as CW.12 and also her uncle's son as CW.11 and also the statement of the mother as CW.10. CWs.11 and 12 in their statement they have stated that on 11.7.2018 she was kidnapped and she was subjected to sexual act and thereafter the victim become dullered and she has taken the extreme step of committing suicide on account of humiliation at the hands of this petitioner and there are sufficient material and hence it is not a case of exercising the powers under section 439 of Cr.P.C. 8. After having heard the arguments of the petitioner's counsel and HCGP, this Court has to examine whether there are prima facie material for the offence alleged against the petitioner in order to exercise the powers under section 439 of Cr.P.C. 9. The accused was arrested on 17.8.2018 and he has been in custody and the victim made an attempt to commit suicide on 14.8.2018 and she lost her breath on 16.8.2018 and the petitioner's counsel in his argument also brought to the notice of this Court that during these two days, the statement of the victim is not recorded and further the counsel appearing for the petitioner also brought to the notice of this Court the postmortem report. On perusal of the postmortem report, the medical opinion in respect of genitalia and organs of generation intact, hymen intact and uterus empty and no doubt there was a note that vaginal swab from posterior vaginal fornik preserved and sent to RFSL for detection of semen and according to the prosecution case, she was subjected to rape by kidnapping her on 11.7.2018 and there is no any whisper with regard to kidnapping and even statement of CWs.11 and 12 is recorded subsequently and they say that they came to know about the kidnapping on 11.7.2018 and statement of these witnesses were recorded subsequently. The kidnapping and also subjecting her for sexual act should be supported by material and only with regard to kidnapping is stated by CWs.11 and 12. This Court do not find any material with regard to the victim being subjected to a sexual act and the report is awaited with regard to vaginal swab is concerned. Prima facie there was no material with regard to victim having been subjected to rape. 10. Having considered the factual aspects of the case and the material collected by the prosecution, this Court is of the opinion that it is a fit case to exercise powers under section 439 of Cr.P.C. Whether she was subjected to rape or kidnapping, all this has to be ascertained during the course of trial and admittedly the investigation has been completed and charge sheet has been filed and there is no any medical evidence as of now with regard to heinous offence of 376 of IPC and no doubt she is aged about 17 years and offence is invoked under section 3 and 4 of POCSO Act and in order to keep the accused in custody, there must be a prima facie material and in the absence of the same, this Court is of the opinion that the petitioner has made out a ground to enlarge him on bail. 11. In view of the discussions made above, this Court proceed to pass the following: ORDER The bail petition is allowed. The petitioner shall be enlarged on bail subject to executing a bond for a sum of Rs.1,00,000/- (one lakh rupees only) with two sureties for the like sum, to the satisfaction of the trial Court. The petitioner shall not tamper the prosecution witnesses. The petitioner shall be enlarged on bail subject to executing a bond for a sum of Rs.1,00,000/- (one lakh rupees only) with two sureties for the like sum, to the satisfaction of the trial Court. The petitioner shall not tamper the prosecution witnesses. The petitioner shall not leave the jurisdiction of the Court without prior permission.