Pathragouda @ Putragouda vs State Of Karnataka & Others

Shivashankar Amarannavar, J

This appeal is filed by sole accused challenging the order dated 25.08.2022 passed in Spl.SC.POCSO(AC) No.37/2022 by the Additional District and Sessions Judge, FTSC-I, Koppal (hereinafter referred to as ‘Special Judge’, for brevity), whereunder the petition filed by the appellant/accused under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’, for brevity) seeking bail in respect of Crime No.80/2022 of Alwandi Police Station registered for the offences punishable under Sections 341, 506, 363, 376(2)(I), 342 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’, for brevity), Sections 6 of Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO’, for brevity) and Sections 3(1)(s), 3(2)(5a) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘SC & ST (POA) Act’, for brevity), came to be rejected.

Heard learned counsel for the appellant and learned High Court Government Pleader for respondent No.1-State. Respondent No.2 in spite of service of notice remained absent and unrepresented.

The case of the prosecution is that, one Smt. Huligemma W/o Nagaraj Talawar, the mother of victim girl has filed complaint stating that her daughter i.e, victim girl is her younger child and she has passed her 10th standard and residing at house. It is further stated that on 09.05.2022 at 07:30 a.m, the victim girl informed that she was going to buy grocery and she did not return back even after at 10:00 a.m, and as such, she was searched everywhere but did not find any information regarding her. The complainant assumed that her daughter might have gone to Udupi, where her husband is working. It is further stated that on 13.05.2022, the victim girl at 08:15 a.m, came and she was looked terrified and she narrated to the complainant that appellant/accused used to stalk her and used to told the victim girl that he will marry her and she told the appellant/accused that he is married man and is having a child and she belongs to Valmiki caste and she is still minor and warned the appellant/accused that she will inform her family about his wrong intentions but, he did not heed to such admonitions. The victim girl further alleged that on 09.05.2022 at 7:30 a.m, she went to buy groceries and at 08:00 a.m, when she was passing by the house of the appellant/accused, she was intercepted by him and told her that she should accompany him to Bengaluru, the same day and if she denied, he threaten to kill her and as such, she was taken to Koppal by bus and thereafter, the appellant/accused took her to Bengaluru, Anekal from Hospet. The appellant/accused took a rented room belonging to one Basavaraj at Anekal, Bengaluru and there she was forced to have sexual intercourse for 2-3 times against her will. On 12.05.2022 at 4:00 p.m, when she was in the room with accused/appellant, he received a call from his brother Beerappa S/o Mudakappa Havalannavar, who informed him that the parents of the victim girl will lodge a complaint and asked him to bring her back to the village if in case he has taken her. The appellant/accused took her from Anekal, Bengaluru and on 13.05.2022 at 08:00 a.m, he dropped her outside the village and threatened her that she will be killed if she revealed about the incident. The complainant solaced her daughter and thereafter, she filed complaint after intimating the same to her husband. The said complaint came to be registered in Crime No.80/2022 of Alwandi Police Station for the offences punishable under Sections 341, 506, 363, 376(2)(I), of IPC, 1860, Sections 6 of POCSO Act and Sections 3(1)(s), 3(2)(5a) of SC & ST (POA) Act. The appellant/accused came to be arrested on 14.05.2022 and he is in judicial custody. The appellant/accused filed bail application in Spl.SC.POCSO(AC) No.37/2022 seeking bail and the same came to be rejected by learned Special Judge by order dated 25.08.2022. The appellant/accused has challenged the said order in the instant appeal.

Learned counsel for the appellant would contend that, the victim girl went missing on 09.05.2022 and the mother of victim girl did not choose to file any complaint for a period of 5 days. It is his further submission that in the complaint it is mentioned that, the victim girl was taken to the house of one Basavaraj at Anekal so also, in the statement of victim girl recorded under Section 164 of Cr.P.C. But as per the spot mahazar as shown by the victim girl, it is the house of one Raghu at Mailasandra, which is contrary to the said statement of the victim girl. It is his further submission that as per the medical examination report, the victim girl last menstrual period was 8 days prior to her examination and she was examined on 14.05.2022 and the alleged sexual assault is between 09.05.2022 and 11.05.2022 and it being the menstrual period, there is no possibility of any sexual intercourse. It is his further submission that as per the history recorded by the doctor, the last day of sexual intercourse is three days prior to her examination, which might have taken place on 11.05.2022. It is his further submission that the doctor, who examined the victim girl has noted that there are no injuries on the body of the victim girl and therefore, it rules out any forcible sexual intercourse. The victim girl has stated that she was dropped at outskirt of her village. In her statement recorded under Section 164 of Cr.P.C, she has stated that she was dropped near Alwandi police station. Therefore, there are contradictions with regard to place of dropping of the victim girl which shows the false implication of this appellant/accused. Without considering all these aspects, the learned Special Judge has passed the impugned order, which requires interference by this Court. With this, he prayed to allow the appeal.

Per contra, learned High Court Government Pleader for respondent No.1 would contend that, the date of birth of the victim girl as per her school records is 21.08.2006 and she is less than 16 years of age. It is his further submission that the contradiction in the statements of the victim girl and the place of her dropping, cannot be gone into in detail in considering the bail application of the appellant/accused. The doctor who examined the victim girl has noted that her hymen is ruptured. In the statement recorded under Section 164 of Cr.P.C, the victim girl has specifically stated the threat given by the appellant taking her to Bengaluru and Anekal and forcibly having sexual intercourse on her. It is his further submission that the appellant/accused is a married man and for his lust, he has committed this alleged act. The charge-sheet material shows prima-facie case against the appellant/accused for the offences alleged against him. It is his further submission that considering all these aspects, the learned Special Judge has rightly passed the impugned order which does not call for any interference by this Court. With this, he prayed to dismiss the appeal.

Having regard to the submissions made by learned counsel for the appellant and learned High Court Government Pleader for respondent No.1-State, this Court has gone through the charge-sheet papers and the impugned order.

The accusation against this appellant is that, he kidnapped the victim girl on 09.05.2022 and took her to Bengaluru and Anekal and kept her in a rented premise and had forcible sexual intercourse on her by giving life threat. The date of birth of the victim girl as per her school records is 21.08.2006 and she is aged 15 years 8 months, as on the date of alleged offence. As per statement of the victim girl, appellant/accused forcibly took her by giving life threat from her village to Bengaluru, Anekal and to a rented premise, where he committed forcible sexual intercourse on her. The doctor who examined the victim girl has noted that the hymen is ruptured. The contradictions pointed out by the learned counsel for the appellant in the complaint, in the statements of the victim girl recorded by the police and the Magistrate under Section 164 of Cr.P.C, can not be gone in detail while considering the bail petition of the appellant. Merely because, the victim girl had monthly period 8 days prior to her examination and during the period of menstrual cycle, there is no possibility of forcible sexual intercourse on the victim girl, cannot be appreciated since the victim girl has specifically stated that the appellant/ accused had forcible sexual intercourse on her during that period. The appellant/accused is a married man having wife and child. The appellant/accused for satisfying his lust alleged to have taken the victim girl and had sexual intercourse with her. The charge-sheet material show prima-facie case against the appellant/accused for the offence alleged against him.

Considering all these aspects, learned Special Judge has rightly rejected the bail petition of the appellant/accused, which does not call for any interference by this Court.

Hence, the Criminal Appeal is dismissed.