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2020 DIGILAW 1967 (KAR)

Umesh v. State Of Karnataka

2020-10-01

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.35/2020 of Women Police Station, Dharwad registered for the offence punishable under Sections 366 and 376 of IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO'). 2. It is the case of the prosecution that one Miss Isabella D/o Selvaraj Xavier has filed a complaint. It is the accusation made in the charge sheet that victim girl who is aged 17 years studying in PUC and accused who is from the same village to that of victim girl by promising the victim girl to marry her as he is loving her has enticed her and took her to Belagavi, Bengaluru and to a farm house situated in survey No.204/1 and had forcible Sexual intercourse and on the next day i.e. on 26.06.2020 he brought her and left her in Dharwad new bus stand. The charge sheet has been filed for the offences punishable under Sections 363, 366, 376 of IPC and Section 4 of the POCSO Act. The petitioner came to be arrested on 29.06.2020. The petitioner filed bail application in Crl.Misc.No.418/2020 before II Addl. District and Sessions and Special Judge, Dharwad and the same came to be rejected by order dated 07.09.2020. Hence, petitioneraccused 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 contention of the learned counsel for the petitioner-accused that the parents of the victim girl with an intention to avoid inter caste marriage of the victim have filed a false complaint against the petitioner. The victim girl left her house on 16.06.2020 and no missing comlaint was filed by the parents of the victim till 26.06.2020. The complainant- Miss Isabella, Social worker has filed the complaint. It is his further submission that on looking to the statement of the victim girl recorded by the Police, she is in love affair with the petitioner-accused and she voluntarily went along with him and had sexual intercourse with him and came back to Dharwad on 26.06.2020. It is her further submission that the medical examination report of the victim girl does not reveal any external injuries. It is his further submission that victim girl is aged 17 years 2 months. It is her further submission that the medical examination report of the victim girl does not reveal any external injuries. It is his further submission that victim girl is aged 17 years 2 months. As on the date of offence, she is of the age of understanding the consequences of her acts. It is his further submission that investigation is over, charge sheet has been filed and the custodial interrogation of the petitioner-accused is necessary and petitioneraccused is ready to abide by the conditions imposed by this Court. With this he prayed to allow the petition. 5. Per contra, the learned HCGP contended that victim girl's age is 17 years and 2 months as on the date of incident. Her date of birth is 15.04.2003. It is her further submission that the victim girl in her statement before the Police stated that petitioner had forcible sexual intercourse with her. It is her further submission that the doctor who has examined the victim girl has opined that the hymen is not intact. It is her further submission that the petitioner has committed the heinous offence and if he is granted with bail, he will tamper the prosecution witnesses and flee from justice. With this, she 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. The victim girl aged 17 years 2 months has left her house on 16.06.2020. Parents of the victim girl have not filed any missing complaint. Complaint has been filed by one Miss Isabella, social worker when she has been intimated regarding the presence of the victim girl in the Dharwad bus stand on 26.06.2020. The victim girl in her statement recorded by Police on 26.06.2020 has stated that she and the petitioner-accused are having love affair and as there was a marriage proposal in her house, she went along with the petitioner-accused on 16.06.2020 and they went to Belagavi and Bengaluru and they had sexual intercourse in a house and thereafter the petitioner has brought her to Dharwad and left her near new bus stand. On looking to the said statement, it is clear that the victim girl is having love affair with the petitioner-accused. On looking to the said statement, it is clear that the victim girl is having love affair with the petitioner-accused. The victim girl is aged 17 years 2 months and she is of the age of knowing consequences of her acts. Even though forcible sexual intercourse is alleged, there are no external injuries over the body of the victim girl. 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 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. 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 27 years and there are no criminal antecedents of the petitioner-accused. If the petitioner-accused is detained in prison, he will come in contact with the hardened criminals. 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.35/2020 of Women Police Station, Dharwad 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 Court regularly and co-operate in speedy disposal of the case.