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Karnataka High Court
Sri. Kiran Kumar @ Kiran vs State Of Karnataka By on 14 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1- NC: 2024:KHC:6324 CRL.P No. 11843 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2024 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL PETITION NO.11843 OF 2023 BETWEEN: SRI KIRAN KUMAR @ KIRAN S/O LATE NARAYANASWAMY AGED ABOUT 29 YEARS, BANDE HOSUR VILLAGE, BIDARAHALLI HOBLI, BANGALORE EAST TALUK BANGALORE DISTRICT-562105 PERMANENTLY R/AT NO.60, HOSAPETE VILLAGE, JANGAMAKOTE CROSS SHIDDLAGHATTA TALUK CHIKKABALLAPURA DISTRICT-562102 Digitally signed by SHARANYA T ...PETITIONER Location: HIGH (BY SRI LEELADHAR H P, ADVOCATE) COURT OF KARNATAKA AND: 1. STATE OF KARNATAKA BY BAGALUR POLICE STATION BENGALURU REP BY SPP HIGH COURT BUILDINGS BENGALURU-560001 2. SMT. SHARADHA D/O VASANTHKUMAR AGED ABOUT 40 YEARS, -2- NC: 2024:KHC:6324 CRL.P No. 11843 of 2023 (MOTHER AND NATURAL GUARDIAN OF THE VICTIM GIRL) R/AT HOSURU BANDE VILLAGE BIDARAHALLI HOBLI, BANGALORE EAST TALUK BENGALURU-562105 ...RESPONDENTS (BY SRI K NAGESHWARAPPA, HCGP) THIS CRL.P IS FILED U/S.439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.126/2020 OF BAGALUR P.S., BANGALORE FOR THE OFFENCE P/U/S 417, 376, 506 OF IPC AND SEC.4 AND 6 OF POCSO ACT AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Heard the learned counsel appearing for the
petitioner and the learned HCGP appearing for the State.
2. This petitioner earlier approached this Court by
filing two petitions which were not decided on merits and
dismissed one for non-prosecution and another for non-
compliance of office objections.
3. The learned counsel appearing for the petitioner
would vehemently contend that this petitioner is in
custody from 3½ years and in order to prove that the
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CRL.P No. 11843 of 2023
victim girl is a minor, no ossification test is conducted and
prosecution is only rely upon the document of school
certificate. The counsel also submits that DNA test is also
not positive. The counsel submits that as on the date of
alleged incident, she was not a minor and aged about 18
years. The incident was taken place in the month of
August 2020 and she became pregnant in the month of
October 2020 and thereafter she aborted the child at the
instance of police. Already witnesses have been examined
before the Trial Court as PW1 to PW7 and other witnesses
are only the formal witnesses. Hence, the petitioner may
be enlarged on bail.
4. Per contra, the learned HCGP appearing for the
State would vehemently contend that the victim who has
been examined as PW1 has supported the case of the
prosecution stating that in the absence of persons in the
house, the petitioner came to her house in the month of
August during COVID period and subjected her for sexual
act forcibly and as a result, she became pregnant. When
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she became pregnant, the said incident was informed to
her parents and then, she was taken to the hospital where
her pregnancy was confirmed. The counsel also submits
that the doctor who conducted the medical examination of
petitioner has examined as PW8 and the doctor who
examined the victim has not been examined and DNA test
is not a substantive piece of evidence. Hence, the
petitioner cannot be entitled for bail. This Court can give a
direction to the Trial Court to dispose of the matter by
examining other witnesses in a time bound period.
5. Having heard the learned counsel appearing for
the petitioner and the learned HCGP appearing for the
State and taking into note of the material available on
record, it discloses that the alleged incident was taken
place in the month of August 2020 during the COVID
period. It is also the statement of the victim girl that
when nobody was there in the house, this petitioner came
to her house and subjected her for sexual act forcibly. It
is also not in dispute that she became pregnant after the
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alleged incident. No doubt, DNA report discloses that in
the absence of embryonic content, the same could not be
established with regard to the fertility. Even in the
absence of DNA test also when the victim girl deposes
before the Court that this petitioner only committed sexual
act against her wish and as a result, she became
pregnant, this Court cannot sit and appreciate the
evidence available on record since the victim girl already
examined before the Trial Court and the Trial Court has to
appreciate the evidence available on record and this Court
cannot usurp the jurisdiction of the Trial Court in
appreciating of the evidence.
6. Other contention of the learned counsel for the
petitioner is that the prosecution has not conducted
ossification test but the document which has been
collected from the school authority discloses that her date
of birth is 02.08.2004 and the incident was taken place in
the month of August 2020 and at that time, the victim was
aged about 16 years and hence, the very contention of the
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counsel for the petitioner that no ossification test is
conducted cannot be accepted. The counsel further
contends that the victim girl is aged about 18 years, but
not placed any material to substantiate the same. When
prima facie material i.e., school certificate discloses that
the victim girl was 16 years old at the time of alleged
incident, the very contention of the counsel for the
petitioner that she is aged about 18 years at the time of
alleged incident cannot be accepted at this stage and the
same is with regard to proving of school certificate and
also other materials and the same is within the jurisdiction
of the Trial Court to appreciate the same.
7. The learned counsel for the petitioner contends
that the petitioner is in custody from 3½ years is not a
ground to enlarge the petitioner on bail when an heinous
offence of alleged crime of sexual act committed against
16 years old girl and the Court has to take note of the
provision made under Section 2(d) of POCSO Act about
the girl below 18 years and she is a minor. When such
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being the case, I do not find any ground to enlarge the
petitioner on bail. However taking note of the fact that
already PW1 to PW7 have been examined and victim girl
also examined and doctor who conducted the medical
examination of the petitioner has been examined as PW8
and the doctor who examined the victim girl has not been
examined, hence, it is appropriate to direct the Trial Court
to conclude the trial and pass the judgment within a period
of four months from today. With this observation, the
petition is disposed of.
8. The prosecution is also directed to keep the
witnesses present before the Trial Court for examination of
remaining witnesses without seeking any adjournment and
assist the Trial Court to dispose the matter within
stipulated time.
Sd/-
JUDGE
SN