Shamshuddin @ Muthu vs The State of Karnataka

H.S. Kempanna, J.—The petitioner who is accused No. 1 in S.C. No. 78/2013 on the file of the Principal Sessions Judge, Kodagu, Madikeri, registered for the offence punishable u/s 376 r/w. 34 of IPC is before this Court praying for releasing him on bail. It is the case of the prosecution, this petitioner in the month of September, 2011 got acquainted with CW. 1 by contacting on her mobile and thereafter promising her to get her a house, secured her on the night of 30th September 2011 to the coffee estate of one Manavattira Iyappa situated at Chonakere village coming within the jurisdiction of Napoklu police station and there in a coolie line house subjected her to forcible sexual intercourse after threatening her with dire consequences and continued the act of rape on her during the Dasara vacation of the year 2011 and further during the month of December, 2011 A.2 also committed rape on hear while she was working in the coffee estate and staying in the coolie line house belonging to Manavattira Iyappa and they had also threatened her with dire consequences saying that she and her children would be burned if she were to take steps to file any complaint.

Learned counsel appearing for the petitioner submits that CW. 1 is the prosecutrix and first informant in this case. Though the occurrence according to the prosecution has taken place during Dasara vacation in the year 2011 CW. 1 has filed complaint before Mattanur police station, Kannur district, Kerala on 2.2.2013. The said police registered the case on the basis of the said complaint in Crime No. 116/2013 on their file on 4.2.2013. Thereafter they transferred the said case on the point of jurisdiction to Napoklu police station Kodagu, who on the receipt of the said complaint registered the case in Crime NO. 68/2013 on 13.4.2013, took up investigation and on completion have filed the final report. He submits, a reading of the first information filed by CW. 1 would reveal that she is a consenting party to the act of sexual intercourse. Her statement does not reveal that she had been subjected to forcible sexual intercourse. Admittedly, she has stayed in the coolie line house situated in a coffee estate belonging to one Manavattira Iyappa situated at Chonakere village where this petitioner was also working and they had connection with each other while they were staying in the said coffee estate. She has come out with the version of she having been subjected to sexual intercourse only in the month of February 2013. As the material on record reveals that she is a consenting party to the act of sexual intercourse, as the petitioner is in custody since 24.4.2013, in the circumstances, he be released on bail.

Per contra, learned High Court Government Pleader opposing the petition filed by the petitioner contended that the statement of CW. 1 coupled with the other material on record would clearly go to show that this petitioner has committed rape on CW. 1 against her wish by threatening her with dire consequences. CW. 1 having been subjected to sexual intercourse is fortified from the medical report on record. Therefore, he contends that though there is a delay in filing the complaint by CW. 1, having regard to the act alleged against the petitioner, there is no reason to discard her statement and since a prima facie case for the offence u/s 376 of IPC is made out, the petitioner is not entitled to be released on bail. A perusal of the first information filed by CW. 1 on 2.2.2013 would indicate that this petitioner and other accused, who is arrayed as A. 2 have committed rape on her while she was working and staying in coffee estate of one Manavattira Iyappa situated at Chonakere village coming within the jurisdiction of Napoklu police station from September to December 2011. It also further reveals that the petitioner apart from committing rape on her had taken her daughter CW. 2 to Tamilnadu and had forcible sexual intercourse with her. It also further reveals that she was staying in the coffee estate along with this petitioner in a coolie line house. The statement of CW. 2 who is the daughter of CW. 1 does not reveal that she was subjected to rape by this petitioner. On the other hand, her statement reveals that she had fallen in love with this petitioner and had gone to Tamilnadu for the purpose of marrying him. That would go to show that the allegations in the first information filed by CW. 1 runs contra to the statement of her daughter CW. 2. A perusal of the statement of CW. 1 goes to show that her age is 43 years and she is a consenting party to the sexual intercourse. The petitioner is in custody since 24.4.2013. Taking these aspects into consideration, in the circumstances, I do not find any justification to decline the request of this petitioner. Accordingly, I proceed to pass the following:-

ORDER

Petition is allowed.

The petitioner is ordered to be released on bail on his executing a personal bond in a sum of Rs. 50,000/- with one surety for the likesum to the satisfaction of the learned Sessions Judge subject to the following conditions:-

The petitioner shall not tamper with the prosecution witnesses.

He shall attend the Court on all dates of hearing.