Chandanagouda & Others vs State Of Karnataka & Others

Shivashankar Amarannavar, J

This petition is filed by the accused Nos.3 and 4 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.20/2021 of Ilkal Rural Police Station, registered for the offences punishable under Sections 354C,

376D, 506, 34 and 109 of IPC 1860 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Section 17 and 4 of the Protection

of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act', for brevity) and Section 67B of Information Technology

Act, 2000 (hereinafter referred to as the 'IT Act', for brevity).

It is the case of the prosecution that one Gudnappa has lodged the complaint on 24.02.2021 stating that his daughter-victim girl aged 13 years was

returning to home after attending the nature's call, at that time, accused No.1 approached her and told her that she needs to sleep with him and tried to

pull her by holding her hand and when his daughter tried to escape, accused No.4 holding a knife in his hand, threatened to kill her in case if she does

not cooperate. The other two accused i.e. accused Nos.2 and 3 gave life threat, if she does not cooperate with accused No.1. The accused No.1

embraced the complainant's daughter and took her near the bush and had forcible sexual intercourse with her after disrobing her. It is further

contended that accused No.2, photographed the sexual act of intercourse and all the accused threatened her stating that if the incident is revealed by

her to anyone, the photographs will be circulated through Whatsapp and they left the scene. Thereafter, it is further contended that accused No.2,

forwarded the photographs pertaining to sexual intercourse to a Whatsapp group named 'BJP Ghataka Hireuppinala'. The said complaint came to be

registered in Crime No.20/2021 for the offences punishable under Sections 354C, 354D, 376(1), 376, 506(2), 376(2), 34, 109, 376(3) of IPC and

Section 17 and 4 of POCSO Act and Section 67(B) of IT Act. The police after investigation have filed the charge sheet for the offences punishable

under Sections 354C, 376D, 506, 109 r/w 34 of IPC and Section 17 and 4 of POCSO Act and Section 67(B) of IT Act. The petitioners-accused Nos.3

and 4 were arrested on 14.03.2021. The petitioners filed bail application in Spl.C.No.39/2021, seeking bail and the same came to be rejected by II

Addl. District & Sessions Judge, Bagalkot, by order dated 02.06.2021. Therefore, the petitioners are before this Court seeking bail.

Heard the learned counsel appearing for the petitioners, the learned High Court Government Pleader for the respondent No.1 and Sri.

A.M.Gundawade, learned counsel for respondent No.2-complainant.

It is the contention of the learned counsel for the petitioners that the petitioners are innocent, they have not committed any offence as alleged and

they have been falsely implicated in this case. The alleged incident has taken place on 20.02.2021 and the complaint came to be filed on 24.02.2021

and there is delay in lodging the complaint and same has not been explained properly. The main accused i.e. accused No.1, who is juvenile in conflict

in law has been granted bail. The doctor who examined the victim girl has opined that there is no evidence of sexual intercourse and hymen is intact.

The victim girl in her statement recorded under Section 164 of Cr.P.C., has not stated that accused No.1 had forcible sexual intercourse with her but

she has stated that accused No.1 lay down on her. There are no eye-witnesses to the incident. He further contended that the allegation leveled against

the petitioners/accused Nos.3 and 4 is that they abeted the accused No.1 threatened the victim girl to have sexual intercourse with accused No.1. He

further contends that on perusal of the entire charge sheet materials, there is no prima facie case against the petitioners for the offences alleged

against them. As the charge sheet has been filed, the petitioners are not required for any custodial interrogation. With this, he prayed for allowing the

petition.

Per contra, learned High Court Government Pleader appearing for respondent No.1/State contended that the victim girl is aged 13 years and in her

statement before the police and before the Magistrate recorded under Section 164 of Cr.P.C., she has specifically stated the overt act of each of the

accused. On perusal of the entire charge sheet materials, there is a prima facie case against the petitioners for the offences alleged. If, the petitioners

are granted bail, they will tamper the prosecution witnesses and flee from justice. With this, he prayed to dismiss the petition.

Learned counsel appearing for respondent No.2 i.e. the complainant would contend that the photographs which are circulated through Whatsapp

group will prove the alleged offences of sexual assault. The petitioners threatened the victim girl with a knife to kill her, if she does not cooperate with

accused No.1 for sexual intercourse. He further contends that the relatives of petitioner No.2/accused Nos.4 and 1 have threatened the complainant

and the complaint came to be registered in crime No.47/2021 of Ilkal Police Station on 24.05.2021 and in turn there is counter complaint is registered

in Crime No.46/2021 against the complainant and others. He further contends that there is a threat to the complainant and other prosecution

witnesses, if the petitioners are released on bail. He further contends that the alleged act of the petitioners and other accused amounts to gang rape

punishable under Section 376D of IPC. Accused No.2 has circulated the photographs of sexual intercourse through his mobile phone to a group

named 'BJP Ghataka Hireuppinala'. He further contends that there are sufficient materials against the petitioners for the offences alleged. With this,

he prayed to reject the petition.

Having regard to the submission made by the learned counsel for the petitioners, learned High Court Government Pleader for respondent No.1-

State and learned counsel for respondent No.2, this Court has gone through the charge sheet records.

The alleged incident said to have happened on 20.02.2021 at 4.15 p.m. and the complaint came to be filed by the father of victim girl at 7.45 p.m. on

24.02.2021. The victim girl has revealed the incident only when her father questioned her on 24.02.2021, when the photographs of sexual intercourse

have been circulated through Whatsapp group. The victim girl kept mum between 20.02.2021 to 24.02.2021. The father of the victim girl has filed the

complaint only on the basis of the information furnished to him by victim girl. The victim girl in her statement recorded by the police on 26.02.2021 has

stated that accused No.1 has forcibly removed her pant and committed rape and had forcible sexual intercourse on her. In the statement of the victim

girl recorded under Section 164 of Cr.P.C., has stated that one person among the four has lay down on her and one person has taken her photos and

other two persons have threatened her. The victim girl has not specific in her statement who laid on her and there is no statement of accused having

forcible sexual intercourse in her statement. The victim girl was examined by the doctor on 25.02.2021. The doctor has noted the report that there are

no external or internal injuries on the body of the victim girl and no injuries on her private parts and hymen is intact. The doctor has also further opined

that there is no evidence of sexual intercourse. On looking to the said medical report, at this stage, it appears that no sexual intercourse on the victim

girl. Therefore, whether the offence under Section 376B of IPC is attracted is doubtful. The accusation leveled against the petitioners is that the

petitioner No.2/accused No.4 threatened the victim girl holding the knife and petitioner No.1/accused No.3 threatened her to take her life, if she does

not cooperate with accused No.1. Except the said allegation of threatening the victim girl by the petitioners/accused Nos.3 and 4, there are no other

allegations. The allegation of circulating the photographs of the victim girl of sexual assault is by accused No.2. The charge sheet has been filed, as

the petitioners are judicial custody since 14.03.2021, they are not required for any custodial interrogation. The petitioners are not habitual offenders.

The main objection of the prosecution is that in the event of granting bail, the petitioners are likely to cause threat to the complainant and other

prosecution witnesses. The said objection may be set right by imposing stringent conditions.

In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for granting bail

subject to certain terms and conditions. Hence, I proceed to pass the following:

ORDER The petition filed under Section 439 of Cr.P.C. is allowed. Consequently, the petitioners/accused Nos.3 and 4 shall be released on bail in

Crime No.20/2021 of Ilkal Rural Police Station subject to the following conditions:

shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) each with one surety for the like sum to the satisfaction of the

jurisdictional Court. Due to COVID- 19, the petitioner is permitted to furnish surety within two months. If circumstances arise, the jurisdictional Court

is permitted to extend the period for furnishing surety.

ii) The petitioners shall not indulge in tampering the prosecution witnesses.

iii) The petitioners shall attend the Court on all the dates of hearing unless exempted and co-operate in speedy disposal of the case.

iv) The petitioners shall not enter Hireupanal village in Ilkal Taluk, Bagalkot District, till the evidence of the prosecution witnesses is completed.