Sri. Kiran Kumar @ Kiran vs State Of Karnataka By on 14 February, 2024

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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

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                                                            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,
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                                         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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CRL.P No. 11843 of 2023

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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CRL.P No. 11843 of 2023

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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CRL.P No. 11843 of 2023

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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CRL.P No. 11843 of 2023

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

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