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2020 DIGILAW 1765 (KAR)

Vasudeva @ Vasu v. State Of Karnataka

2020-09-08

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - This petition is filed by accused No.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.10/2020 of Yelburga Police Station, Koppal district, registered for the offences punishable under Sections 448 and 376 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act', for brevity) 2. The case of the prosecution is that the victim studying in 8th standard has filed a complaint stating that she is residing along with her family members and her father is a peon and elder sister is given in marriage and her brother and younger sister are staying in the house. It is further alleged that on 11.01.2020 at about 9.00 am the victim along with one Netra, who is studying in 1st standard were proceeding from Chikoppa tanda to their school, at that time, when they were passing through the land of one Sharanappa Bandi, at that time, accused No.1-Shivu came behind, caught hold mouth of the victim and threatened Netra to go to school and later the victim will come to school and accordingly accused No.1 forcibly took her to the shed situated by the side of the road wherein accused No.2 was there and accused No.1 by leaving the victim in the said shed went away and accused No.2 persuaded the victim stating that he will marry her and he was in love with her and that without her consent and will, said to have committed rape on her knowing that she is a minor. It is further alleged that the victim raised hue and cry and hearing the same, her uncle-Ramachandra came there and she informed about the incident to him and thereafter narrated the incident to her parents. But the parents thought of their reputation and did not lodge the complaint. However, after 14 days of the incident, after discussion with the elders, the victim lodged a complaint against the accused persons. But the parents thought of their reputation and did not lodge the complaint. However, after 14 days of the incident, after discussion with the elders, the victim lodged a complaint against the accused persons. The victim gave further statement wherein it is stated that on 11.01.2020 at about 9.00 am when she was about to go to school and waiting for her friends and at that time nobody were in the house and accused No.2/petitoner entered into the house, persuaded her that he was in love with her and he would marry her and by saying he committed rape on her despite of resistance knowingly that she is a minor. The police after investigation filed charge sheet only against the petitioner(accused No.2) and did not sent accused No.1-Shivu for trial. The said charge sheet has been filed for the offences punishable under Sections 448 and 376 of IPC and Section 4 of the POCSO Act. The petitioner was arrested on 27.01.2020. The petitioner filed bail application in Crl.Misc.No.191/2020 and the same came to be rejected by the FTSC-1, Koppal, by order dated 22.07.2020. Therefore, the petitioner is before this Court seeking bail. 3. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State. 4. Learned counsel for the petitioner has submitted that the incident has taken place on 11.01.2020 and the complaint came to be filed on 25.01.2020 and there is a delay in filing the complaint and the petitioner has been falsely implicated in the case. It is his further submission that the victim subsequently gave a statement on 27.01.2020 giving a different story than that of the one mentioned in the complaint implicating accused No.2 only by giving go bye to the story narrated with respect to accused No.1. It is his further submission that as per the sketch of the spot, it is in the house of the victim and it is surrounded by houses and there are no eyewitnesses to the incident. It is his further submission that looking to the medical certificate, it is clear that the victim has not sustained any external injuries. It is his further submission that the victim had proposed the petitioner/accused No.2 to love her and he refused and therefore she has filed a false complaint against him. It is his further submission that looking to the medical certificate, it is clear that the victim has not sustained any external injuries. It is his further submission that the victim had proposed the petitioner/accused No.2 to love her and he refused and therefore she has filed a false complaint against him. It is his further submission that the petitioner is studying in 4th Semester B.A. and he is the only son. With these, he prayed for allowing the petition. 5. Per contra, learned High Court Government Pleader submitted that the victim is aged 14 years and she in her statement under Section 164 Cr.P.C. has clearly stated regarding forcible sexual assault made by the petitioner on her on 11.01.2020 in her house. It is her further submission that in the medical certificate it is noted that hymen is absent. It is her further submission that charge sheet, prima facie, show a case against the petitioner for the offence alleged. It is her further submission that, if, the petitioner is granted bail, he will tamper the prosecution witnesses and flee from justice. With this, she 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. The victim has filed the complaint on 25.01.2020 against the petitioner and another Shivu Keshappa Rathod (accused No.1) alleging that said accused No.1-Shivu forcibly took her to the land and left her in the shed wherein accused No.2 was present wherein accused No.2 committed sexual assault on her. The said victim has given go bye to the statement made on 25.01.2020 and gave different story that the incident had taken place in her house on 11.01.2020 and she has also given go bye to the allegations against accused No.1 stating that he was implicated as there was earlier enmity as his brother had kidnapped her relative. Therefore, the said aspect goes to create some doubt regarding false implication of the petitioner/accused No.2 as submitted by the learned counsel for the petitioner. The medical certificate reveal no external injuries and hymen is absent. More so there is delay in filing the complaint. The incident has taken place on 11.01.2020 and the complaint came to be filed on 25.01.2020. 7. The medical certificate reveal no external injuries and hymen is absent. More so there is delay in filing the complaint. The incident has taken place on 11.01.2020 and the complaint came to be filed on 25.01.2020. 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. In the present case, investigation is completed and charge sheet has been filed. 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 the custodial interrogation of the petitioner is necessary. The petitioner is aged 25 years and he is studying 4th Semester B.A. and if he is detained in prison, his educational career will be affected. 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 petitioner is likely to cause threat to the complainant 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 petitioner/accused No.2 shall be released on bail in Crime No.10/2020 of Yelburga Police Station subject to the following conditions: i) The petitioner/accused No.2 shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with one surety for the like sum to the satisfaction of the jurisdictional Court. Due to COVID-19, the petitioner is permitted to furnish surety within two months. If circumstances arise, the jurisdictional Court is permitted to extend the period for furnishing surety. ii) The petitioner/accused No.2 shall not indulge in tampering the prosecution witnesses. iii) The petitioner/accused No.2 shall attend the Court regularly and co-operate in speedy disposal of the case.