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2020 DIGILAW 1627 (KAR)

Swapnil Vasant Rakshe 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.78/2019 of Khade Bazar Sub-division, Camp Police Station registered for the offence punishable under Sections 376, 366(A) of IPC and Sections 4, 6 and 8 of POCSO Act, 2012. 2. The case of the prosecution is that on the complaint given by one Smt.Padma Chandrakant Gurav of Vijayanagar Belagavi a case came to be registered in Crime No.78/2019 for the offences punishable under Section 376, 342, 366(A) of IPC and Sections 4, 6, 8 of POCSO Act, 2012. In the complaint, it is stated that complainant is residing with her family members and one of her daughter i.e. victim girl is studying in IX standard in G.A.School Belagavi and she use to attend her class daily and the petitioner used to follow her and seeing the same the complainant warned the petitioner not to do so since her daughter is teenage girl and not to disturb her and the petitioner agreed to her advice. On 24.11.2019 the daughter of complainant victim girl left the house at 8.30 pm saying that she is going to attend the naming ceremony in the house of one Hulaji in the same street where the complainant and her family residing. But she did not returned to home up to late night and the complainant searched for victim girl whole night here and there and enquired her other relatives but all went in vain she did not traced out on that night. So on the next day on 25.11.2019 the complainant and others went to Camp Police Station Belagavi and requested the Police orally that her daughter victim girl aged 14 years is missing and the Police gave assurance that they will try. On 26.11.2019 they started searching the victim girl but she did not traced out. Thereafter at 7.30 p.m. the complainant and her relatives returned to home and surprisingly victim girl was in their house and after enquiry she gave the history that on 24.11.2019 the petitioner took her on his Motor Cycle by inducing her and shifted her to one apartment and gave kiss and thereafter after open her pant assaulted sexually repeatedly on 25.11.2019 whole night. So the complainant went to Police Station and filed her complaint. Police arrested the petitioner. The petitioner-accused has filed the bail application before III Addl. So the complainant went to Police Station and filed her complaint. Police arrested the petitioner. The petitioner-accused has filed the bail application before III Addl. Sessions Judge, Belagavi and the same is dismissed. Therefore, the 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 the incident has taken place on 24.11.2019 and complaint came to be registered on 26.11.2019 and there is a delay in filing the complaint. It is his further submission that there is inconsistency in the first information and further statement of the complainant. It is his further submission that as per the submission of the victim girl recorded by the Police, victim girl herself called accused. It is his further submission that there are inconsistencies in the statement of the victim girl recorded by the Police and the statement recorded by the Magistrate under Section 164 of Cr.P.C. It is his further submission that in the medical examination report, the history is mentioned as kidnapping and sexual assault at 9 pm on 26.11.2019 at petitioner-accused house at Sadashiva nagar, Belagavi. But as per the prosecution case, alleged incident has taken place on 24.11.2019. It is his further submission that as per the medical examination report, the dental age of the victim girl is 15 to 16 years and the skeletal age is below 18 years. It is his further submission that in the medical examination report of the victim girl, there is mention of old hymen tear present and there was no rapture of hymen and therefore, no sexual intercourse has taken place. It is his further submission that in the medical examination report of the petitioner-accused he has given history that the victim girl was troubling him from two months by calling him by phone and telling him to meet her. So on 24.11.2019 at 8.30 p.m. he went to meet her near Vijayanagar Bus stop. The victim girl proposed him on the road and he refused and went his house and next day victim girl's brother and relatives took him to a place Kademachin and assaulted him by fifteen peoples with plastic pipe. It is also notices that he has sustained three contusions on right and left leg and left copula. The victim girl proposed him on the road and he refused and went his house and next day victim girl's brother and relatives took him to a place Kademachin and assaulted him by fifteen peoples with plastic pipe. It is also notices that he has sustained three contusions on right and left leg and left copula. It is his further submission that investigation is over, charge sheet has been filed and the custodial interrogation of the petitioner-accused is not necessary. With this he prayed to allow the petition. 5. Per contra, the learned HCGP contended that the age of the victim girl is 13 years and her date of birth is 03.02.2006. It is his further submission that on looking to the statement of the victim girl recorded by the Police and Magistrate is clearly goes to show that petitioner-accused took the victim girl to a apartment under construction and sexually assaulted her. It is his further submission that there is a prima facie case against the petitioner-accused for the offences alleged against him. 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. As per the certificate issued by the G.A. School, Belagavi, date of birth of the victim girl is 03.02.2006. As per the medical examination report, dental age of the victim girl is between 15 to 16 years and skeletal age is below 18 years. Victim girl in her statement before the Police and Magistrate has stated that she used to make phone call to petitioner and used to meet him near ice cream shop. On looking to the said submission, it appears that the victim girl was in love affair with the petitioner. Even though, the forcible sexual assault is alleged, there is no rapture of the hymen and in the medical certificate it is mentioned that old hymen tear present. There are no external injuries noticed at the time of examination of the victim girl by the doctor in the report. 7. Even though, the forcible sexual assault is alleged, there is no rapture of the hymen and in the medical certificate it is mentioned that old hymen tear present. There are no external injuries noticed at the time of examination of the victim girl by the doctor in the report. 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 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. Charge sheet has been filed. The petitioner is aged 25 years and there are no criminal antecedents of the petitioner-accused. 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.78/2019 of Khade Bazar Sub-division Camp 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 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 hampering the investigation and tampering the prosecution witnesses in any manner. iii) The petitioner shall appear before the Court regularly and cooperate in speedy disposal of the case.