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2020 DIGILAW 1859 (KAR)

Devappa v. State Of Karnataka

2020-09-25

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - This petition is filed by the petitioner-accused No.2 under Section 439 of Cr.P.C. seeking bail in Crime No.77/2020 of Kanakagiri Police Station registered for the offence punishable under Sections 363, 376, 354(A) AND 354(D) OF IPC AND U/S 4, 6, 12 17 AND 18 OF THE POCSO ACT 2012 and U/S 3(i)(r)(s) OF SC/ST (POA) ACT 2015. 2. It is the case of the prosecution that one Ramesh S/o Erappa Talawar R/o Mailapura in Karatagi taluka and Koppal District alleging that he married the elder sister of the victim girl who is aged about 16 years. Victim girl had been brought by her elder brother Yamunappa on 20.06.2020 as such the victim girl was at Mailapur. It is further alleged that on 25.06.2020 when the complainant and his wife were in the house the accused No.1 and the accused No.2-petitioner herein had been to the house of the complainant on the pretext that they are going to marriage at Basapura. When the complainant has enquired the victim girl, the victim girl told that they belong to the village of victim girl. As the complainant has suspected the visiting of the accused No.1 and the accused No.2 and the victim has informed the same to the elder brother of the victim girl and he told the complainant to get her back to his village Neeraluti as such on 27.06.2020 at about 9.30 a.m., the complainant and the victim girl have left the Mallapura village and when they were proceeding towards Kanakagiri at about 10.30 a.m. victim asked to stop the motor bike as she has to attend the nature call as such the complainant has stopped the bike. As the victim girl could not return even after 15-20 minutes, complainant has called the elder brother of the victim girl and informed the same and elder brother Yamanoorappa had been to the place and they have searched in and around the place and one lady has informed that one girl has taken away by one boy. As the complainant and Yamanoorappa could not get the victim girl have filed the complainant against the accused No.1 and petitioner-accused No.2 herein on suspicion. Based on the said complaint, Police registered the case against petitioner Nos.1 and 2 in Crime No.77/2020 of Kanakagiri Police Station for the offence punishable under Section 363 of IPC. As the complainant and Yamanoorappa could not get the victim girl have filed the complainant against the accused No.1 and petitioner-accused No.2 herein on suspicion. Based on the said complaint, Police registered the case against petitioner Nos.1 and 2 in Crime No.77/2020 of Kanakagiri Police Station for the offence punishable under Section 363 of IPC. Statement of the victim girl was recorded on 04.07.2020. Police have arrested the petitioner and he filed bail application before Addl. District and Sessions Judge, FTSC-1 at Koppal and the same came to be rejected by order dated 12.08.2020. Therefore, the petitioner-accused No.2 is before this Court seeking bail. 3. Heard the learned counsel for the petitioner-accused No.2 and learned HCGP for respondent-State. 4. It is the submission of the learned counsel for the petitioner-accused No.2 that the incident has taken place on 27.06.2020 at 9.30 a.m. and the complaint came to be filed on 28.06.2020 at 8.30. p.m. and there is a delay in filing the complaint. It is his further submission that the statement of the victim girl has been recorded by the Police under 161 of Cr.P.C. and by Judicial Magistrate under Section 164 of Cr.P.C. and there are inconsistencies in the said statements. It is his further submission that there is no allegation of sexual assault by the accused No.2 and only the accused No.1 has sexually assaulted the victim girl. It is his further submission that victim girl has voluntarily gone with the accused No.1. It is his further submission that there is a delay in recording the statement of the victim girl under Section 164 of Cr.P.C. It is his further submission that allegation made against accused No.2 petitioner here in is that he abetted and instigated the accused No.1 to kidnap the victim girl and sexually assault her . It is his further submission that offences alleged against the petitioner herein are not punishable with death or imprisonment for the life. With this he prays to allow the petition. 5. Per contra, the learned HCGP submitted that victim girl is aged 16 years and her date of birth is 08.02.2004. It is her further submission that role of the petitioneraccused No.2 has been specifically stated by the victim girl in her statement recorded under Section 161 of Cr.P.C. by Police and under Section 164 of Cr.P.C. by the judicial Magistrate. Per contra, the learned HCGP submitted that victim girl is aged 16 years and her date of birth is 08.02.2004. It is her further submission that role of the petitioneraccused No.2 has been specifically stated by the victim girl in her statement recorded under Section 161 of Cr.P.C. by Police and under Section 164 of Cr.P.C. by the judicial Magistrate. It is her further submission that petitioneraccused No.2 threatened the victim girl to love accused No.1 and asked accused No.1 to commit sexual assault on her and he use to watch it. It is her further submission that the case is under investigation. If the petitioneraccused No.2 released on bail, he will hamper the investigation and tamper the prosecution witnesses. With this she prays to reject the bail petition. 6. Having regard to the submission made by the learned counsel for the petitioner-accused No.2 and the learned HCGP, this Court has gone through the FIR, Complaint and Statements of the victim girl. After securing the victim girl, her statement by Police was recorded on 04.07.2020 and by judicial Magistrate on 24.07.2020. On looking to both the statements, there are inconsistencies in statements and there is no allegation of sexual assault by the petitioner-accused No.2. The sexual assault alleged to have been committed by accused No.1 on the victim girl. The allegation leveled against the petitioner-accused No.2 is that he instigated and abetted the accused No.1 to kidnap and sexually assault the victim girl. The alleged offence is not punishable with death or imprisonment for life. 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. In the present case the investigation is under progress and no grounds are made by the prosecution to show the custodial interrogation of the petitioner-accused No.2. There are no criminal antecedents of the petitioneraccused No.2. The petitioner-accused No.2 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 No.2 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 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 No.2 shall be released on bail in Crime No.77/2020 of Kanakagiri 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 mark his attendance in jurisdictional Police Station on every first and third Sunday between 10 a.m. to 2 p.m. for a period of three months or till filing of final report, whichever is earlier. iv) The petitioner shall co-operate with the Investigating Officer in the investigation.