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2022 DIGILAW 1363 (KAR)

Baseersab v. State of Karnataka

2022-10-14

SHIVASHANKAR AMARANNAVAR

body2022
JUDGMENT Shivashankar Amarannavar, J. - This successive bail petition is filed by the sole accused under Section 439 of Cr.P.C., seeking bail in Crime No. 39/2020 of Women Police Station, Dharwad, for the offences punishable under Sections 376, 305, 506 of IPC and Section 4 of POCSO Act, 2012. 2. The case of the prosecution in brief is that, one Purnanandayya the father of the deceased victim-girl has filed a complaint stating that his daughter aged 15 years staying with him in Farm House along with other family members. That on 30.07.2020 at 2.30 p.m. when all members were there in home, the victim-girl said that she will go to Patreppajjan temple and accordingly she went and came back at 3.30 p.m. Her nighty was stained with mud and on questioning she told that while coming back from temple she slipped and fell down, therefore, there were mud stains. It is further stated that, on the next day i.e. on 31.07.2020 at 6.00 a.m., when complainant and his wife were in their bedroom, the victim-girl came and started crying. On questioning, she informed that yesterday when she had been to temple, accused all of a sudden came and closed her mouth with his hands and took her on his shoulder near a sugarcane field by threatening her that he will kill her and thereby committed sexual assault. Then complainant and his wife after hearing the same consoled the victim and told her to wash her face and will go to Hospital. Victim-girl agreed to the same and went to the bathroom. The complainant and his wife heard the sound of victim vomiting in the bathroom and when they went to the bathroom, they saw that the victim has consumed herbicide and was taken to Kittur Government Hospital for treatment. The Doctor on examination suggested to take her to Dharwad Government Hospital. On the same day, she was admitted in Dharwad Government Hospital. But she died during treatment on 02.08.2020 at 6.30 a.m. The said complaint came to be filed on 02.08.2020 and registered in Crime No. 39/2020 for the offences punishable under Sections 376, 305, 506 of IPC and Section 4 of POCSO Act. The accused came to be arrested on 03.08.2020. The Investigating officer has filed the charge-sheet for the aforesaid offences. The accused filed bail application in Spl. The accused came to be arrested on 03.08.2020. The Investigating officer has filed the charge-sheet for the aforesaid offences. The accused filed bail application in Spl. AC No. 32/2020 and same came to be dismissed by the II Additional District and Sessions Judge and Special Judge, Dharwad by order dated 19.12.2020. This petitioner earlier filed Criminal Petition No. 100386/2021 seeking bail and the same came to be rejected by this Court vide order dated 01.06.2021. Thereafter, the petitioner filed bail application before the trial Court and the same came to be rejected by order dated 17.12.2021. Therefore, the petitioner is before this Court seeking bail. 3. Heard the arguments of the learned counsel for the petitioner and the learned HCGP for the respondent-State. 4. The respondent No. 2 in spite of service of notice, has remained absent and un-represented. 5. It would be the contention of the learned counsel for the petitioner/accused that, the charge came to be framed on 19.01.2021 and on 13.07.2021, the trial Court has issued witness summons to C.W.1 and C.W.8 to C.W.10 and on 26.07.2021, C.W.1 came to be examined as P.W.1 and her further examination is deferred for want of the production of the seized articles for the purpose of identification. It is his further submission that, the case was adjourned for 24 times and on all the dates the petitioner was produced through video conference or produced physically. It is his further submission that, due to the delay of the trial, the petitioner is entitle for grant of bail. It is his further submission that, the petitioner is having agricultural lands which requires his presence for cultivation. 6. Learned counsel for the petitioner has placed reliance on the decision of the Allahabad High Court in the case of Mohammad Main Vs. State of U.P., reported in 1993 Crl.L.J. 2621, contending that, the delay in the trial due to non-prosecution of the witnesses by the prosecution is a ground for grant of bail. With this, he prayed to allow the petition. 7. Per contra, learned HCGP would contend that, this is a successive bail petition and this Court on an earlier occasion by considering the heinousness of the offence, charge-sheet material and the punishment provided for the offences alleged, has rejected the bail petition. With this, he prayed to allow the petition. 7. Per contra, learned HCGP would contend that, this is a successive bail petition and this Court on an earlier occasion by considering the heinousness of the offence, charge-sheet material and the punishment provided for the offences alleged, has rejected the bail petition. It is his further submission that, the petitioner has not made out any new grounds for grant of bail in the present successive bail petition. It is his further submission that, the delay caused in the trial is not because of the non-production of the prosecution witnesses by the police, but it is for the non production of the articles seized and this Court can direct the Investigating Officer to secure the articles and produce the same. With this, he prayed to reject the petition. 8. Having heard the learned counsel for the petitioner and the learned HCGP, this Court has gone through the charge-sheet records and the documents produced by the counsel for the petitioner. 9. Earlier this Court considered the merits of the case, heinousness of the offence, threat to the prosecution witnesses, has rejected the bail petition of this petitioner. This successive petition is filed only on the ground that there is a delay in the trial. The trial Court has framed charge on 19.01.2021 and summoned the prosecution witnesses. The prosecution witnesses appeared and C.W.1 has been examined in-part and further examination is deferred for want of seized properties for identification. The seized properties were sent for DNA test and the test report and the said properties are awaited. Merely because there is a delay in the trial is not a ground for grant of bail when the prosecution witnesses have appeared before the trial Court and when they are examined partly. In the case relied upon by the learned counsel for the petitioner, the prosecution has failed to produce the witnesses for a period of two years by seeking eight adjournments, but in the present case, the prosecution has produced the witnesses before the trial Court for examination. Therefore, the said decision relied upon by the learned counsel for petitioner is not applicable to the case on hand. In the present case, the trial is delayed only because of the non-production of the seized articles, which are sent to RFSL for DNA test. Therefore, the said decision relied upon by the learned counsel for petitioner is not applicable to the case on hand. In the present case, the trial is delayed only because of the non-production of the seized articles, which are sent to RFSL for DNA test. In the circumstances, the Investigating Officer can be directed to secure the said articles which have been sent for RFSL and produce the same within two months. The petitioner has not made out any ground for grant of bail. Hence, the petition is dismissed. The Investigating Officer is directed to secure the articles from RFSL and produce the same within two months from this day. The copy of this order be sent to the Investigating officer for information and necessary action.