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2020 DIGILAW 1611 (KAR)

Basayya v. State Of Karnataka

2020-08-28

SHIVASHANKAR AMARANNAVAR

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JUDGMENT Shivashankar Amarannavar, J. - This petition is filed by accused Nos.1 and 2 under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.101/2019 of Terdal Police Station for the offences punishable under Sections 323, 344, 354A, 363, 366A, 368, 370, 371, 376, 376(1), 376(2)(n), 376(3), 511, 506 and 109 read with Section 34 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity), Sections 4, 6, 8, 12 and 17 of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act', for brevity) and Section 3(1)(w)(i)(ii)(iii), 3(2)(va) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the SC and ST Act, for brevity). 2. The case of the prosecution is that on 28.12.2019 one Prabhavati w/o Laxman Kore filed a complaint alleging that she is working as Anganawadi Supervisor at Rabakavi zone. On 28.12.2019, at about 10.00 am, complainant received information from CDPO S.S. Zunjarawad that a girl-victim, aged 17 years from Davanagere is in the house of the petitioners and the public assaulted the petitioners and petitioner No.1 escaped and petitioner No.2 was tied to a pole and the girl was handed over to the police. The complainant along with her staff Yashwant Madar, District Child Protection Cell, social worker and Ganga Ballur, Anganawadi worker, reached Terdal Police Station at about 11.00 am made enquiry with the girl and she told that, she is studying in II PUC at SUS Women's Commerce College, Davanageri and her house is near HKR Circle. It is alleged that her friend Rakshita told that, as she belongs to poor family and petitioner No.1 is performing marriage of poor girls, asked her to contact him and she gave the phone number of petitioner No.1. The victim contacted petitioner No.1. Petitioner No.1 told her to come to Rabakavi after informing the parents and the victim informed the parents and left Davanageri on 16.10.2019 and reached the house of the petitioners. Petitioner No.2 was at house. The victim stayed at Hanagandi village for 11/2 months and thereafter residing at Vidyanagar, Rabakavi. After looking to the Aadhar card, the petitioners told her that she cannot get married as she is till minor. Petitioner No.2 was at house. The victim stayed at Hanagandi village for 11/2 months and thereafter residing at Vidyanagar, Rabakavi. After looking to the Aadhar card, the petitioners told her that she cannot get married as she is till minor. On 27.12.2019 at 11.00 pm petitioner No.1 called the victim to sleep with him and when she refused, he forcibly caught hold her and tried to kiss her. The girl started shouting and petitioner No.2 and neighbours came and advised petitioner No.1 and the girl slept in the house of the neighbour. It is alleged that in the morning, the public assaulted petitioner No.2 and petitioner No.1 escaped and petitioner No.2 was tied to a pole and persons from Karnataka Rakshana Vedike handed over the girl to the police. The said complaint has been registered in Terdal Police Station Crime No.101/2019 for the offences punishable under Section 354A and 406 read with Section 34 of IPC and Section 8 of the POCSO Act and Section 3(1)(w)(i)(ii)(iii) and 3(2)(va) of SC and ST Act. The petitioners were arrested on 31.12.2019. The Investigating Officer filed charge sheet and a case came to be registered in Spl.Case No.20/2020 for the offences punishable under Sections 323, 344, 354A, 363, 366A, 368, 370, 371, 376, 376(1), 376(2)(n), 376(3), 511, 506 and 109 read with Section 34 of IPC, Sections 4, 6, 8, 12 and 17 of POCSO Act and Section 3(1)(w)(i)(ii)(iii) and 3(2)(va) of SC and ST Act. The petitioners filed bail application and the same came to be rejected by the Sessions/Special Court. Therefore, the petitioners are before this Court seeking bail. 3. Heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader for the respondent-State. 4. Learned counsel for the petitioners has submitted that a statement of the victim has been recorded under Section 164 of Cr.P.C. and there is also a written statement signed by the victim. It is his further submission that there are inconsistencies in both the statements of the victim. It is his further submission that the victim was residing in Davanageri and she is aged 17 years and she has voluntary come to Rabakavi and the parents have not filed any missing complaint and it shows that there is some fishy in the matter and the petitioners have been falsely implicated in the case. It is his further submission that the victim was residing in Davanageri and she is aged 17 years and she has voluntary come to Rabakavi and the parents have not filed any missing complaint and it shows that there is some fishy in the matter and the petitioners have been falsely implicated in the case. It is his further submission that there are allegation that accused No.1 had taken the victim to Ahamedabad and Udaipur and there are no material collected by the Investigating Officer to establish the same. As per the version of the victim, she was sexually assaulted by accused on 27.12.2019 and the victim girl has been examined by the Doctor on 29.12.2019 at 4.45 am and in the examination report it is noted that she has not sustained any external injuries and the doctor has opined that there is no evidence of sexual intercourse present. It is his further submission that the very said aspect goes to show that the version of the victim that accused No.1 had sexually assaulted her is unbelievable. It is his further submission that CWs.19- 25, who are the neighbours and belong to the caste to that of the victim and only to implicate the accused, have been cited as witnesses and they had prior enmity with the petitioners/accused. It is his further submission that the petitioners reside along with their son Santosh in a small house and there are no chances of accused No.1 committing sexual assault in the said house, as there will be presence of accused No.2 and their son. It is his further submission that Investigating Officer has not collected any material to show that the accused tried to sell the victim. It is his further submission that charge sheet has been filed and therefore, the presence of the petitioners for any custodial interrogation is not required. It is his further submission that accused No.1 is diabetic and accused No.2 is a woman. It is his further submission that there are no serious allegations against accused No.2. It is his further submission that there are no criminal antecedents of the petitioners. With these, he prayed for allowing the petition. 5. It is his further submission that accused No.1 is diabetic and accused No.2 is a woman. It is his further submission that there are no serious allegations against accused No.2. It is his further submission that there are no criminal antecedents of the petitioners. With these, he prayed for allowing the petition. 5. Per contra, learned High Court Government Pleader submitted that the statement of the victim has been recorded under Section 164 of Cr.P.C. and in the said statement, the victim has specifically stated that petitioner No.1 had sexually assaulted her and tried to sell her to persons at Udaipur and Ahamedabad. It is his further submission that in the charge sheet prima facie case alleged against the petitioner and if the petitioners are granted bail, they will tamper the prosecution witnesses and flee from justice. With this, he prayed to dismiss the petition. 6. Having regard to the submission made by the learned counsel for the petitioner and the learned High Court Government Pleader, this Court has gone through the charge sheet records. As per the statement of the victim, she voluntarily came from Davanageri to Rabakavi to the house of the petitioners. The victim is aged 17 years. She is having the knowledge and understanding the consequences of her act. Even though the victim was missing, her parents have not filed any missing complaint. Even though it is alleged that accused No.1 had taken the victim to Ahamedabad and Udaipur and tried to sell her, there is no charge sheet material in that regard. It is alleged that accused No.1 sexually assaulted the victim on 2 to 3 occasions and on 27.12.2019. The victim was examined by the Doctor on 29.12.2019 and he has noted that there are no external injuries over the body of the victim. The Doctor, who examined the victim, has opined that no evidence of sexual intercourse present. The learned counsel for the petitioner submitted that looking to all the materials, it appears that there is some fishy in the matter and I find some force in the contention of the counsel for the petitioners. Petitioner No.2 is a woman aged 40 years and there are no specific allegations against her. Petitioner No.1 is aged 49 years and as per the submission of the counsel, he is suffering from diabetes. There are no criminal antecedents of the petitioners. Petitioner No.2 is a woman aged 40 years and there are no specific allegations against her. Petitioner No.1 is aged 49 years and as per the submission of the counsel, he is suffering from diabetes. There are no criminal antecedents of the petitioners. The petitioners are in judicial custody since 31.12.2019. 7. It is well settled that matters to be considered in an application for bail are: "(i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail. While a vague allegation that the accused may tamper with the evidence or witnesses, may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused." 8. In a decision in the case of Dataram Singh v. State of Uttara Pradesh and Another, (2018) 3 SCC 22 the Hon'ble Apex Court held as under: "A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society." 9. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society." 9. In the present case, investigation is completed and charge sheet has been filed. No grounds have been made out by the prosecution to show that custodial interrogation of the petitioners is necessary. There are no criminal antecedents of the petitioners. The petitioner is the resident of the address shown in the cause title and the same is not disputed. The main objection of the prosecution is that in the event of granting bail, the petitioners are likely to cause threat to the complainant, victim and other prosecution witnesses. The said objection may be set right by imposing stringent conditions. 10. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for granting bail subject to certain terms and conditions. Hence, I proceed to pass the following: ORDER The petition filed under section 439 of Cr.P.C. is allowed. Consequently, the petitioners/accused shall be released on bail in Crime No.101/2019 of Terdal Police Station subject to the following conditions: i) The petitioners/accused shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) each with one surety for the like sum to the satisfaction of the jurisdictional Court. Due to COVID-19, the petitioners are permitted to furnish surety within two months. If circumstances arise, the jurisdictional Court is permitted to extend the period for furnishing surety. ii ) The petitioners/accused shall not indulge in tampering the prosecution witnesses. ii i) The petitioner/accused shall appear before the Court regularly and co-operate in speedy disposal of the case.