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2020 DIGILAW 1626 (KAR)

Balappa @ Pintu v. State Of Karnataka

2020-09-01

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - This petition is filed by the petitioner-accused under Section 439 of Cr.P.C. seeking bail in Crime No.155/2019 of Chikkodi Police Station registered for the offences punishable under Sections 376(1)(2)(1)(n) of IPC. 2. The case of the prosecution is that one Magabul Husainsab Mulla has lodged a compliant on 22.11.2019 alleging that he his permanent resident of Jattipalam and his father is aged about 75 years and his sister victim girl is residing with his father in Bidrolli and he is staying at Jattipalam and his brother is staying at Bengaluru and another brother is staying at Bidrolli. It is further alleged that victim girl is mentally retarded and she is deaf and dumb. It is further alleged that on 15.05.2019 the wife of the complainant had been to Bidrolli and she returned back to Jattipalam. On 21.11.2019 complainant and his wife Reshma came to Bidrolli village and at that time his sister victim girl has informed him that on 21.05.2019 a person staying backside of the house of the complainant's father and who has developed beards and having a motor cycle by name Pintu used to look at her and he has promised her that he will marry her and by saying so he had developed physical contact with her and once in two days he used to come in the night and used to have forcible sexual intercourse with her and used to go back to his house at 4.00 a.m. It is alleged that on 12.11.2019 the petitioner had physical relationship with her lastly and the complainant and his wife just touched the stomach of the victim girl and they felt that she is pregnant. It is further alleged that form 21.05.2019 to 12.11.2019 petitioner had forcible intercourse with victim girl and as such the complainant lodged the complaint to the Chikodi Police Station. Chikkodi Police have registered the case in Crime No.155/2019 for the offence punishable under Section 376(1)(2)(L) of IPC on 22.11.2019. Petitioner was arrested on 22.11.2019. Petitioner has filed a bail application in Crl. Misc. No.2702/2019 before the VIII Addl. District and Sessions Judge, Belagavi and the same is rejected by order dated 19.03.2020. Hence petitioner accused is before this Court seeking bail. 3. Heard the learned counsel for the petitioner-accused and learned HCGP for respondent-State. 4. Petitioner was arrested on 22.11.2019. Petitioner has filed a bail application in Crl. Misc. No.2702/2019 before the VIII Addl. District and Sessions Judge, Belagavi and the same is rejected by order dated 19.03.2020. Hence petitioner accused is before this Court seeking bail. 3. Heard the learned counsel for the petitioner-accused and learned HCGP for respondent-State. 4. It is the submission of the learned counsel for the petitioner-accused that as per the medical examination report given by the doctor Chandrashekar T.R. Associate Professor, Department of Psychiatry, BIMS, the victim girl is not mentally retarded and she is deaf and dumb. It is his further submission that victim girl who is aged 37 years is having physical contact with the petitioner-accused for more than seven months itself goes to show that there was a consentual sex between them. It is his further submission that charge sheet has been filed and therefore petitioner is no more required for custodial interrogation. With this he prays to allow the petition. 5. Per contra, the learned HCGP submitted that the victim girl is deaf and dumb and petitioner making misuse of the same had sexual intercourse with her and made her pregnant. It is his further submission that charge sheet papers makes out prima facie case against the petitioner-accused and the presence of the petitioneraccused is required for DNA test. It is his further submission that if the petitioner-accused is granted with bail, he will tamper the prosecution witnesses and flee from justice. With this, he prays to reject the bail petition. 6. Having regard to the submission made by the learned counsel for the petitioner-accused and the learned HCGP, this Court has gone through charge sheet records. Even according to the complainant, victim girl is a mentally retarded. But, as per the medical certificate given by doctor Chandrashekar T.R. Associate Professor, Department of Psychiatry, BIMS, Belagavi victim girl is not mentally retarded but she is deaf and dumb. The victim girl is aged 37 years. On looking to the continuous sexual intercourse between the petitioner and the victim girl, the victim girl has became pregnant of seven months goes to show that it is consentual sex between them. 7. The victim girl is aged 37 years. On looking to the continuous sexual intercourse between the petitioner and the victim girl, the victim girl has became pregnant of seven months goes to show that it is consentual sex between them. 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 reported in the case of DATARAM SINGH Vs. 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 the investigation is completed and charge sheet has been filed and no grounds have been made out by the prosecution to show that custodial interrogation of the petitioner-accused is necessary. The petitioner-accused has no criminal antecedents. The petitioner-accused is residing in the address shown in the cause title and it is not disputed. The main objection of the prosecution is that in the event of grant of bail, the petitioner-accused is likely to cause threat to the complainant and prosecution witnesses. The said objection may be set right by imposing some stringent conditions. 10. In the facts and circumstances of the case, this Court is of the considered view that there are valid grounds for grant of bail subject to conditions. Hence, I pass the following. ORDER The petition filed under Section 439 of Cr.P.C. is allowed. The petitioner-accused shall be released on bail in Crime No.155/2019 of Chikkodi Police Station, subject to the following conditions. i) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (one lakh rupees only) with one surety for the like sum to the satisfaction of the jurisdictional Court. In view of Covid-19, the petitioner is permitted to furnish surety within two months. If circumstances arise, jurisdictional court is permitted to extend the time for furnishing surety. ii) The petitioner shall not indulge in tampering the prosecution witnesses in any manner. iii) The petitioner shall appear before the investigation officer or before Court if summoned for giving blood samples for DNA test. iv) The petitioner shall appear before the Court regularly and co-operate in speedy disposal of the case.