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2020 DIGILAW 1894 (KAR)

Yallappa v. State Of Karnataka

2020-09-29

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - This petition is filed by the accused 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.23/2020 of Belagavi APMC Police Station, registered for the offences punishable under Sections 366A and 376 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Sections 4, 6, 8 and 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act', for brevity). 2. It is the case of the prosecution that the father of the victim has filed complaint on 19.02.2020 stating that he along with his family members are originally from Channapur Tanda, Ramdurg taluk and now are residing at Hanuman Nagar circle, Belagavi and he is working as a watchman in Hanuman Nagar, Belagavi and residing with his wife, 5 daughters and a son. The elder daughter is married and 4 daughters and son are residing with him. The victim, who has studied up to 7th standard had left the school and was going to tailoring class. On 16.02.2020, as regularly, she went for the said tailoring class near TV centre Belagavi and even after 6'O clock in the evening she did not return to the house and has not informed to any family members and she went away without informing. The complainant searched in the house of his relatives and friends and could not trace her. On 19.02.2020 at about 13.30 hours, the complainant filed the complaint before the APMC yard Police Station, Belagavi. On 22.02.2020, the victim approached the jurisdiction police station i.e., APMC Yard Police Station, Belagavi and stated that on 17.02.2020 at about 17.30 hours the petitioner/accused informed her that he is taking her to Bengaluru and thus, she with the petitioner went in an auto from Hanuman Nagar to Bus stand wherein the wife of the accused was also there and the accused took the victim and his wife to Bengaluru and from there, he took to Chokkahalli of Anekal taluk, Bengaluru rural district and there he took one room from his friend and they resided there. There, she remained with the accused for 4 days and accused has developed physical relationship and thereafterwards the victim informed the petitioner/accused that she want to meet her parents. There, she remained with the accused for 4 days and accused has developed physical relationship and thereafterwards the victim informed the petitioner/accused that she want to meet her parents. Therefore, the petitioner/accused left Bengaluru on 22.02.2020 to Belagavi and left the victim at Belagavi bus stand and thereafter, the victim went to the police station. The police have recorded her statement on 24.02.2020. The police arrested the petitioner/accused on 22.02.2020. The petitioner filed bail application before the III Additional District and Sessions Court and Special Court, Belagavi in Spl.Case.No.133/2020 and it came to be rejected by order dated 19.06.2020. 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. It is the contention of the learned counsel for the petitioner that on looking to the averments of the statement of the victim recorded under Section 164 of Cr.P.C., she is loving the petitioner/accused and she voluntarily went with the petitioner and with her consent, the petitioner had sexual intercourse with her. It is his further submission that the medical certificate of the victim reveal no external injuries. Even the medical certificate of the petitioner also reveal no external injury. It is his further submission that the petitioner took this victim along with his wife. It is his further submission that charge sheet has been filed and the petitioner is not required for any custodial interrogation. With this, he prayed for allowing the petition. 5. Per contra, learned High Court Government Pleader contended that the petitioner is a minor aged 15 years and her date of birth is 01.06.2004. The petitioner even though is a married man, has enticed the minor girl and had sexual intercourse with her in Bengaluru. It is her further submission that the medical certificate of the victim reveal that there is old tear of hymen. It is her further submission that consent of a minor is not a consent. It is her further submission that the petitioner even though is a married man, for his lust, has enticed the victim and had sexual intercourse with her. It is her further submission that charge sheet material, prima facie, establish the offences alleged against the petitioner/accused. It is her further submission that consent of a minor is not a consent. It is her further submission that the petitioner even though is a married man, for his lust, has enticed the victim and had sexual intercourse with her. It is her further submission that charge sheet material, prima facie, establish the offences alleged against the petitioner/accused. It is her further submission that if the petitioner is granted bail, he will tamper the prosecution witnesses and there are chances of repeating the same offence and fleeing from justice. With this, she prayed to dismiss the petition. 6. The victim girl is aged 15 years and her date of birth is 01.06.2004 as per the certificate issued by the Principal S.S. Composite Pre-University College, Shivabasavanagar, Belagavi. As per the statement of the victim recorded under Section 164 Cr.P.C., she voluntarily went along with the petitioner to Bengaluru, as she is loving him, along with the wife of the petitioner and stayed in a room wherein the petitioner had sexual intercourse with her with her consent. The victim is a minor and therefore, consent by a minor girl is not a consent at all. Medical certificate of the victim reveal that there is old tear of hymen. The chare sheet material prima facie show that the petitioner has committed the offences alleged against him. The petitioner, being a married man, has enticed the minor girl for his sexual desire. Therefore, the petitioner is not entitled for grant of bail. 7. Hence, the petition is rejected.