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2020 DIGILAW 1482 (KAR)

Bhimesha v. State Of Karnataka

2020-07-23

P.N.DESAI

body2020
JUDGMENT P.N.Desai, J. - The petitioner has filed this petition under section 439 of Code of Criminal Procedure seeking grant of bail in respect of Spl (P) Case No.310/2020 pending on the file of I Addl. Sessions Judge, Raichur for the offences punishable under Sections 376 & 506 of Indian Penal Code, Section 4 of Protection of Children from Sexual Offices Act, & Secs. 3(1) (r) (s) (w), (i) 3 (2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocity's) Act. 2. It is the case of the prosecution that, on 17-04-2020 at about 10.00 a.m., near the house of the accused at Kallur village, the complainant-prosecutrix i.e., victim girl aged about 15 years and her sister Monika who is aged about seven years went near the house of accused to bring cow-dung, when they were fetching the cow-dung, at that time, accused came there and he gagged the mouth of the victim girl with the towel which was on her chest. It was about 10.30 a.m., he took the victim to adjacent haystack and made her to fall on the surface and pulled her lunga towards upper side and forcibly committed sexual assault and rape on the victim girl without her consent and wish, though she tried to escape, the accused did not leave her. The younger sister of the victim girl ran away after seeing this to call her family members. Thereafter words the accused threatened the victim girl stating that, he will not leave her if she informed about this to anybody. Then the said girl Monica brought her family members, victim girl informed them about the incident. In this regard after discussion in the family, they lodged complaint before the police on 19-04-2020 at about 8.30 p.m. It is further contended that, the said victim girl was a minor and also belongs to Scheduled caste i.e., bhovi waddar. Knowing well that she is a minor and belongs to scheduled caste, sexual assault and rape was committed by the accused. On the basis of the statement of the victim girl, Sirwar police have registered a case in crime No.51/2020 for the offences punishable under sections 376 & 506 of Indian Penal Code, sections 4 & 6 of Protection of Children from Sexual Offences and under section 3(1) (r ) (s), 3(1) (w), 3(2) (v) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocity's) Act. 3. 3. The petitioner/accused was arrested on 20- 04-2020, since then he is in judicial custody. His bail application came to be rejected by the learned Sessions Judge, Raichur in Cril. Misc. No.38/2020 on 06-06- 2020. Aggrieved by the same, the petitioner/accused has filed this petition on the following grounds: That, there are no reasonable grounds to believe that, the petitioner has committed any offences punishable with death or imprisonment for life. There are no eyewitnesses or circumstantial evidence to connect the petitioner/accused with the guilt. The petitioner is innocent. The statements before the police and before the Magistrate are contradictory and inconsistent with each other. If at all accused has committed any forcible sexual assault or rape, then the victim-girl should have necessarily sustained bodily injury. But the perusal of the charge sheet papers, it reveals that, she had not at all sustained any bodily injury. The alleged rape has taken place on 17-04- 2020. However the FIR came to be registered on 19-04- 2020 after lapse of two days. There is no proper explanation in this regard. There are no external injuries. The petitioner is young and 23 years old. It is the allegation that, the said rape has taken place in the heart of the village and public moves in the day time, so that itself creates doubt about the occurrence of the incident. The witnesses are interested. The petitioner/accused committed rape or not is to be considered at the time of trial. The offences alleged are not punishable with death or imprisonment for life. Considering the petitioner /accused is kept in judicial custody since more than six months, he be released on bail. The petitioner is having movable and immovable property at Kallur village. The petitioner is having old aged parents and suffering from many ailments, he requires to take care about them. He is having deep roots in the society and under takes that, he would not tamper, influence or threaten the prosecution witnesses. If the petitioner is continued in the custody, his family will be put to serious hardship. The petitioner is ready to abide by any of the conditions to be imposed by this court and ready to furnish surety to the satisfaction of this court. With these main grounds the petitioner has prayed to enlarge him on bail. 4. If the petitioner is continued in the custody, his family will be put to serious hardship. The petitioner is ready to abide by any of the conditions to be imposed by this court and ready to furnish surety to the satisfaction of this court. With these main grounds the petitioner has prayed to enlarge him on bail. 4. Learned High Court Government Pleader has filed objection to the petition contending that, Investigating Officer after completion of investigation has filed charge sheet against the accused. CW.2 Monica is eyewitness to the incident. Forensic Science Laboratory report is yet to be received. The victim girl in her statement under section 164 of Code of Criminal Procedure before the J.M.F.C has reiterated her version about the sexual assault and rape committed by the accused. The statement of CW.2 corroborates the version of victim, so there is prima-facie material against the accused in commission of the offence against a child. The object of POCSO Act is to protect the best interest of the minor child. In the event of the enlarging the petitioner/accused on bail, he will definitely indulge with same criminal act or sexual act and tamper with the victim. If the petitioner is released on bail, he may not be available for trial and he may flee from justice. Hence respondent-state prayed to reject the application. 5. The victim-complainant aggrieved is also made as party. Notice was issued and served to her through her mother. The prosecution has produced service of notice of bail application to respondent No.2. 6. Heard the learned counsel for the petitioner and the learned High Court Government Pleader and perused the materials placed before this court. 7. I have perused the statement of witnesses and statement of victim under section 164 of Code of Criminal Procedure before the J.M.F.C on 20-04-2020 The victim has stated the name of the petitioner/accused and also stated about accused committing forcible sexual intercourse on her by making her lying on the haystack. She has also stated the presence of her sister Monica, so that supports her version. At this stage the medical evidence also indicates the possibility of forcible sexual assault also cannot be refuted. 8. The contention of the petitioner/accused is that, there is a delay in lodging the complaint. Such contention does not hold good at this stage. She has also stated the presence of her sister Monica, so that supports her version. At this stage the medical evidence also indicates the possibility of forcible sexual assault also cannot be refuted. 8. The contention of the petitioner/accused is that, there is a delay in lodging the complaint. Such contention does not hold good at this stage. Because in these types of cases, immediately the family members will not take decision to lodge the complaint. Admittedly the victim girl is a minor, there is also possibility of her family members who are villagers may not take decision immediately and there is possibility that they may think, some times it may affect her future. It is mentioned in the F.I.R that, she has informed her parents on the same day and in the house they all discussed, then decided that, victim girl should get justice. The possibility that, for that reason the complaint may be lodged on 19-04-2020. So that, cannot be a ground at this stage to hold that, there is abnormal delay. The medical report also does not rules out the possibility of forcible sexual assault by the petitioner on the victim girl. The statement of the victim girl under section 164 of Code of Criminal Procedure before the J.M.F.C, corroborates the statement of the eyewitness who is her sister a child witness. 9. Admittedly the offence under section 376 of Indian Penal Code and other offences are very serious offences. The punishment prescribed for the said offences are very severe. While granting or rejecting the bail application, the Court will have to take into consideration: (1) the nature and seriousness of the offence, (2) character of the accused, (3) circumstances which are peculiar to accused, (4) reasonable probabilities of presence of the accused not being secured at trial, (5) reasonable apprehension of witnesses being tampered with and (6) larger interest of public or the state and similar other considerations, which arise when a court is asked to admit the accused to bail in a nonbailable offence. 10. So, in the light of these principles if the present petition is considered, it is evident that the gravity of the offences is very severe one. Its impact on the society is also very severe one. 10. So, in the light of these principles if the present petition is considered, it is evident that the gravity of the offences is very severe one. Its impact on the society is also very severe one. The charge sheet is filed under sections 376 & 506 of Indian Penal Code, Section 4 of Protection of Children from Sexual Offences and under sections 3(1) (r), (s) (w) (i), 3(2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocity's) Act wherein the punishment is also severe. The very purpose of enacting of Scheduled Castes & Scheduled Tribes (Prevention of Atrocity's) Act is to check and deter the crime on the Scheduled Castes and Scheduled Tribes. The said persons are subjected to various offences, humiliation and harassment, severe brutal incidents, which have deprived their life and property. Therefore for trial of such offences and for relief of rehabilitation on the victim of said offences the said Act came to be enacted. After the amendment in 2015 stringent punishments are prescribed. 11. The offence of rape is not on a physical body, but is on a mental state of mind also. It is a crime not against individual, but against the society at large that too when a minor is alleged to have been subjected to forcible sexual assault and rape. More particularly when the victim girl belongs to Scheduled Caste or Scheduled Tribe caste and is also minor the gravity has larger impact on society. The only eyewitness according to the prosecution is also a minor, so the shock and trauma that they might have undergone cannot be measured at this stage. I have perused the scene of offence place panchnama and the xerox copy of photographs of said place, which are produced. The said incident has taken place on haystack. So naturally when a person is put on a haystack or made to lie on haystack the surface will be smooth, there will not be any rough surface, because the very nature of haystack appearing in scene of offence panchnama photos. Even the scene of offence place indicates that, it is not such a place which can be viewed by public as there are fencing surrounded by bushes. Its both sides there is only open area and land. So the possibility of public seeing the said accused also not there. Even the scene of offence place indicates that, it is not such a place which can be viewed by public as there are fencing surrounded by bushes. Its both sides there is only open area and land. So the possibility of public seeing the said accused also not there. Therefore, none of the grounds urged by the petitioner in the bail petition will help him to show that there is no primafacie material at this stage to believe that, he has not committed offences alleged against him. The petitioner has wrongly contended in paragraph No.17 of his petition that, he is in judicial custody for more than six months, it is not correct as the date of offences is 17-04-2020. None of the grounds mentioned in the bail petition are tenable. At this stage, the apprehension of the prosecution that, if the petitioner is enlarged on bail there is possibility of threatening the minor child and witnesses also cannot be ruled out. Looking into the nature and gravity of the offence, its impact on the society and the material placed before the Court, at this stage in my considered view the petitioner is not entitled for relief of bail. Simply because the charge sheet is filed and it is a Covid-19 time and trial may not take place immediately are not the grounds to grant bail in these type of heinous offences. This Covid-19 Pandemic is there around the world. It is not confined to any place, state or nation. So none of the contentions urged by the petitioner are tenable. The petitioner has not made out any grounds to enlarge him on bail. Accordingly, I pass the following: ORDER The petition filed by the petitioner U/Sec.439 of Code of Criminal Procedure is dismissed.