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2022 DIGILAW 1550 (KAR)

Nihal v. State of Karnataka

2022-12-02

SHIVASHANKAR AMARANNAVAR

body2022
JUDGMENT 1. This petition is filed by the sole accused under Sec. 439 of Cr.P.C., seeking bail in Crime No.186/2022 of Muragod Police Station for the offences punishable under Sec. 376(2)(I), 506 of IPC and Ss. 4 and 6 of POCSO Act, pending in Special Case No.207/2022 on the file of the Additional District and Sessions Judge, FTSC-I, Belagavi. 2. The case of the prosecution is that, Smt. Mayawwa Shivappa Mugalihal, Anganawadi Supervisor of Yaragatti, has filed a complaint stating that, she received a phone call from one S.M.Ramnaiker, Head Constable, working in Muragod Police Station, informing her that the victim-girl who is the daughter of Dadasab Shelldar, aged 15 years 11 months has been subjected to sexual assault and they have received MLC from the District Hospital, Belagavi and the victim-girl and her parents are hesitating to give complaint. The complainant informed the same to her superiors and went to the Government Hospital, Belagavi and enquired with the victim-girl and her parents and none of them have given any information to the complainant. Then she enquired with the Doctor and the Doctor informed that the victim-girl is 10 weeks pregnant. Upon this information, she filed complaint which came to be registered in Muragod Police Station Crime No.186/2022 for the offences punishable under Ss. 376(2)(l) and 506 of IPC and Ss. 4 and 6 of the POCSO Act, against the unknown persons. During the investigation, the police recorded the statement of the victim-girl wherein, she has stated that this petitioner use to talk to her and tease her. That on 28/4/2022, when she was alone in the house, the petitioner/accused came and pulled her hand and had forcible sexual intercourse on her and threatened her not to inform the same to anyone. Subsequently, she started getting stomach pain and she informed the same to her parents who took her to the Hospital, wherein, she was diagnosed as pregnant. The petitioner came to be arrested on 9/7/2022 and he is in judicial custody. The petitioner filed Criminal Misc. No.1110/2022 and the same came to be rejected by the Additional District and Sessions Judge, FTSC-1, Belagavi, by order dtd. 1/9/2022. Subsequently, the police filed charge-sheet against this petitioner for the offences punishable under Ss. 376(2)(l) and 506 of IPC and Ss. The petitioner filed Criminal Misc. No.1110/2022 and the same came to be rejected by the Additional District and Sessions Judge, FTSC-1, Belagavi, by order dtd. 1/9/2022. Subsequently, the police filed charge-sheet against this petitioner for the offences punishable under Ss. 376(2)(l) and 506 of IPC and Ss. 4 & 6 of the POCSO Act and now the case is pending in Special Case No.207/2022 on the file of the Additional District and Sessions Judge, FTSC-I, Belagavi. 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 respondentState. 4. The respondent No.2 in spite of service of notice, has remained absent and un-represented. 5. Learned counsel for the petitioner would contend that, the complaint came to be filed by Anganawadi Supervisor against unknown persons. There is no complaint either by the victim-girl or by her parents. The victim-girl is aged 15 years 11 months and she is capable of understanding the consequences of her acts. The statement of the victim-girl has been recorded by the police and also under Sec. 164 of Cr.P.C. The Doctor who examined the victim-girl has noted that the abortion has been done on 12/7/2022. It is his submission that, there is no medical opinion and the DNA report is not yet received. As the charge-sheet is filed, the petitioner is not required for custodial interrogation. The petitioner is 22 years old. It is his further submission that, the petitioner is diagnosed with Reducible Inguinal Hernia and he needs surgery and produced case-sheet in that regard. With this, he prayed to allow the petition. 6. Per contra, learned HCGP would contend that, the date of birth of the victim-girl is 15/7/2006 and she is aged 15 years 09 months as on the date of the alleged offence. It is his further submission that, the victim-girl in her statement recorded by the police and also recorded under Sec. 164 of Cr.P.C. has specifically stated that, this petitioner has forcibly committed sexual intercourse on her and gave threat not to inform the same to anybody. It is his further submission that, the Doctor has conducted abortion on 12/7/2022. The abortus and the blood sample of the victim-girl and the accused, have been sent for DNA test and the DNA report is awaited. It is his further submission that, the Doctor has conducted abortion on 12/7/2022. The abortus and the blood sample of the victim-girl and the accused, have been sent for DNA test and the DNA report is awaited. The charge-sheet material shows prima-facie case against the petitioner for the offences alleged against him. With this, he prayed to reject the petition. 7. Having regard to the submissions made by the learned counsel for the petitioner and the learned HCGP for the respondent-State, this Court has gone through the charge-sheet records and the order passed by the Sessions Court. 8. The date of birth of the victim-girl as per her school records is 15/7/2006 and she was aged 15 years 8 months as on the date of the alleged offence. As per the statement of the victim-girl recorded by the police and recorded under Sec. 164 of Cr.P.C., on 28/4/2022 when she was alone in the house, the petitioner entered her house forcibly and had sexual intercourse in spite of her resistance and he gave threat not to intimate the same to anyone. The victim-girl has been examined by the Doctor on 6/7/2022 and opined that, she is three months pregnant. The charge-sheet material shows primafacie case against the petitioner for the offences alleged against him. If the petitioner is granted bail, there is a threat to the complainant and other prosecution witnesses. As the petitioner is suffering from Reducible Inguinal Hernia he has been given treatment in Belagavi Institute of Medical Science and therefore, he is not entitle for grant of bail on that ground. The petitioner has not made out any ground for grant of bail. Hence, the petition is dismissed.