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2023 DIGILAW 1008 (KAR)

Gururaj L. v. State of Karnataka

2023-08-23

H.P.SANDESH

body2023
JUDGMENT 1. Heard the learned counsel appearing for the petitioner, the learned HCGP appearing for the State and the learned counsel appearing for respondent No.2. 2. The factual matrix of the case of the prosecution against the petitioner is that he had indulged in committing sexual offence against the minor girl and POCSO offences are invoked against this petitioner. The Trial Court earlier enlarged this petitioner on bail and the same was challenged before this Court and this Court having reassessed the material on record, vide order dtd. 14/1/2022 cancelled the bail granted in favour of this petitioner in Crl.P.No.7143/2021 and the said order was challenged before the Apex Court In a Special Leave to Appeal (Crl) No.719/2022 and the Apex Court vide order dtd. 8/2/2022 dismissed the said SLP with liberty to move the application for bail after the examination of prosecutrix. Now the prosecutrix and the mother of the victim have been examined before the Trial Court and hence, the petitioner is before this Court. 3. The counsel for the petitioner brought to notice of this Court to the complaint which has been marked as document No.2 as well as to the 164 statements of the victim and the mother and also the depositions of PW1 and PW2. The counsel referring the depositions of PW1 and PW2 would vehemently contend that the same are completely inconsistent with the statements recorded under Sec. 164 of Cr.P.C. and the complaint. When there are contradictions in the evidence, though this Court cannot usurp the jurisdiction of the Trial Court in appreciating the evidence when major contradictions are found in the evidence, this Court has to take note of the said fact into consideration. The counsel also would vehemently contend that the petitioner was working as a Lecturer and due to cancellation of bail of this petitioner, he is in custody from last one and a half years and he has already been suspended from the job and no chances of committing similar offences and hence, this Court may enlarge the petitioner on bail. 4. Per contra, the learned counsel appearing for respondent No.2 i.e., mother of the victim brought to notice of this Court that the mobile was seized at the instance of this petitioner and the same was sent to FSL for examination wherein found the naked photograph in the said mobile. 4. Per contra, the learned counsel appearing for respondent No.2 i.e., mother of the victim brought to notice of this Court that the mobile was seized at the instance of this petitioner and the same was sent to FSL for examination wherein found the naked photograph in the said mobile. It is also the case of the victim that in keeping the said photograph, the petitioner subjected the minor girl for sexual act on several occasions. Though incident was taken place long back and when the continuous act was done by the petitioner and when the mother of the victim girl noticed changes in the behaviour of her daughter, she was taken to the hospital and on enquiry, she revealed with regard to the act of this petitioner and the same has been considered by this Court while canceling the bail granted in favour of the petitioner. The counsel also would vehemently contend that in the evidence the victim girl has narrated the incident in detail wherein it discloses that the act is not the one day incident but on several dates, she was subjected to the sexual act and there may be very minor contradictions in the evidence and the same will not go to the very root of the case of the prosecution and this Court cannot expect the evidence in a chronological order and the Court has to look into the very evidence given by the victim which discloses that she was subjected to sexual act in the hands of this petitioner and hence, he is not entitled for the bail. 5. Per contra, the learned HCGP appearing for the State also submits that during the course of her evidence she was reiterated the averments made in the complaint as well as 164 statement and while giving evidence, some of the dates of alleged incidents may be interchanged and the Court cannot expect the evidence in a chronological order and the subject matter of the case is that the victim was subjected for sexual act by this petitioner on several occasions and this Court has to see whether the evidence of victim inspires the confidence of the Court or not. Hence, the petitioner has not made out any ground to enlarge him on bail. 6. Hence, the petitioner has not made out any ground to enlarge him on bail. 6. In reply to the arguments of the learned counsel for respondent No.2 and the learned HCGP, the counsel for the petitioner would vehemently contend that there is a glaring contradictions on the evidence of the victim as well as the mother and hence, this Court can exercise the discretion in favour of the petitioner. 7. Heard the learned counsel appearing for the respective parties. This Court has to consider the material on record since it is a successive bail petition. No doubt, this Court earlier on reassessing the material on record cancelled the bail granted in favour of this petitioner and the said order was challenged before the Apex Court and the Apex Court also confirmed the order of this Court and given liberty to the petitioner to approach this Court after examination of prosecutrix. No doubt, now the prosecutrix is examined as PW1 and mother of the victim also examined as PW2. The counsel for the petitioner submits that there are major contradictions in the evidence of PW1 and PW2. Having perused the depositions of PW1 wherein she has deposed that when the alleged act was committed by this petitioner for the first time and also subsequently subjecting her for sexual act and also brought to notice of this Court to paragraphs 1, 2, 3, 6 and 8 of the deposition wherein she also narrates the incident of subsequent act of this petitioner and also taking her and her mother to Dharmastala and thereafter they came back and again she was subjected for sexual act and gist of the evidence of PW1 that she was subjected to the sexual act by this petitioner on several occasions by showing naked photographs and this Court cannot expect the evidence in a chronological order. 8. 8. The counsel for respondent No.2 also brought to notice of this Court to the test report with regard to seizure of mobile of this petitioner and apart from that the mother of the victim also examined before the Trial Court and would vehemently contend that if there is any discrepancy in the evidence of PW1 and PW2, the Trial Court has to appreciate the same and this Court sitting under Sec. 439 of Cr.P.C cannot appreciate the same and whether there is contradictions in the evidence of PW1 and PW2 and the same goes to the very root of the case or not also to be considered by the Trial Court while considering the matter on merits and not at the stage of examining PW1 and PW2 only. The Trial Court has to consider the medical evidence, FSL report and FSL witnesses are also to be examined and apart from that in a case of subjecting a minor girl to the sexual act, the POCSO Act are invoked and the Court has to see the gravity of the offences and nature of punishment provided to the said offences. 9. The very contention of the counsel for the petitioner that the petitioner is in custody from last one and a half years and the same is not a ground to enlarge the petitioner on bail when the petitioner being a Lecturer allegedly committed the heinous offence with his student who was a minor and the same affects the society at large. Keeping the interest of society, this Court taken note of the gravity of the offences while cancelling the bail granted in favour of this petitioner and the Apex Court also while confirming the order of this Court an opportunity was given to approach this Court after examination of prosecutrix. I have already pointed out that prosecutrix as well as her mother were examined and the Court cannot expect the evidence in a chronological order and photographic evidence since the incident was taken place in the year 2017 and 2018 and now, we are in the year 2023 and this Court also take note of the age of the victim. I have already pointed out that prosecutrix as well as her mother were examined and the Court cannot expect the evidence in a chronological order and photographic evidence since the incident was taken place in the year 2017 and 2018 and now, we are in the year 2023 and this Court also take note of the age of the victim. When such being the case, it is not a fit case to exercise the discretion in favour of this petitioner and this Court cannot usurp the jurisdiction of the Trial Court in appreciating the evidence available on record and the same has to be done by the Trial Court by appreciating the evidence available on record. Hence, I do not find any grounds in the bail petition to enlarge the petitioner on bail in a successive bail petition. 10. In view of the discussions made above, I pass the following: ORDER The bail petition is rejected.