Vishnappa Aliyas Shivu S/O Yallappa … vs State Of Karnataka on 23 February, 2024

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Karnataka High Court

Vishnappa Aliyas Shivu S/O Yallappa … vs State Of Karnataka on 23 February, 2024

Author: S.Vishwajith Shetty

Bench: S.Vishwajith Shetty

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                                                            NC: 2024:KHC-D:4435
                                                            CRL.P No. 100468 of 2024




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 23RD DAY OF FEBRUARY, 2024

                                                 BEFORE

                             THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY

                                 CRIMINAL PETITION NO. 100468 OF 2024

                      BETWEEN:

                           VISHNAPPA @ SHIVU S/O YALLAPPA KURI
                           AGE: 20 YEARS, OCC: AGRICUTLURE,
                           R/O JAMALAPUR ONI, NARAGUND TOWN,
                           TQ: NARAGUND. DIST: GADAG.
                                                                        ...PETITIONER
                      (BY SRI SRINIVAS B. NAIK, ADVOCATE)

                      AND:

                      1.   STATE OF KARNATAKA
                           REP. BY STATE PUBLIC PROSECUTOR,
                           HIGH COURT OF KARNATAKA,
                           DHARWAD BENCH
                           THROUGH NARAGUND POLICE STATION,
                           DIST. GADAG-580011.

                      2.   SALMA W/O MAKTUMBEG MULLA,
ANNAPURNA
CHINNAPPA                  AGE: 35 YEARS, OCC: HOUSEWIFE,
DANDAGAL                   R/O JAMALAPUR ONI, NARAGUND TOWN,
                           DIST. GADAG-582207.
Digitally signed by
ANNAPURNA
CHINNAPPA DANDAGAL
                                                                      ...RESPONDENTS
Date: 2024.02.23
13:06:09 +0530        (BY SRI. T.P.MALIPATIL, AGA FOR R1;
                      SRI. PRASHANT MATHAPATI, ADVOCATE FOR R2)

                             THIS CRIMINAL PETITION IS FILED U/SEC. 439 OF CR.P.C.
                      SEEKING TO GRANT REGULAR BAIL TO THE PETITIONER IN SC NO.
                      05/2024 ON THE FILE OF ADDL. DISTRICT AND SESSIONS JUDGE
                      GADAG, IN CRIME NO. 222/2023 OF NARGUND POLICE STATION
                      REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
                      376, AB, 506 OF IPC AND U/SEC. 4 AND 6 OF POSCO ACT.
                                -2-
                                     NC: 2024:KHC-D:4435
                                     CRL.P No. 100468 of 2024




     THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
                             ORDER

1. Accused in Crime No.222/2023 registered by Naragunda

Police Station, Gadag District, for the offences punishable under

Sections 376AB, 506 IPC and Sections 4 & 6 of the Prevention

of Children from Sexual Offences Act, 2012, is before this Court

under Section 439 Cr.PC.

2. Heard the learned Counsel for the parties.

3. FIR in Crime No.222/2023 was registered by Naragund

Police Station, Gadag District, against the petitioner herein for

the aforesaid offences on the complaint lodged by respondent

no.2 who is the mother of the victim girl.

4. In the complaint dated 07.12.2023, the complainant has

averred that at about 9.30 p.m. on 07.12.2023 her minor

daughter had informed her that petitioner had misbehaved with

her on 05.12.2023 when she had gone to the local dargha for

offering prayers and on 07.12.2023 at about 7.00 p.m., when

she was walking near the dargha, the petitioner came there

and forcibly took her into a vacant house and in the said house,

he sexually assaulted her and thereafter threatened her with
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CRL.P No. 100468 of 2024

dire consequences to her life in the event she informs about the

incident to anybody. It is in this background at about 23.25

hours on 07.12.2023 complaint was lodged, based on which,

FIR in Crime No.222/2023 was registered against the

petitioner.

5. During the course of investigation of the said case,

petitioner was arrested on 08.12.2023. Investigation in the

case is completed and charge sheet was filed on 16.12.2023

against the petitioner for the aforesaid offences. Bail application

filed by the petitioner before the Trial Court in

Spl.Sess.C.No.5/2024 was rejected on 27.01.2024. Therefore,

petitioner is before this Court.

6. Learned Counsel for the petitioner having reiterated the

grounds urged in the petition submits that even if the entire

prosecution allegations against the petitioner is presumed to be

proved, only the offence punishable under Section 8 of the

POCSO Act can be made out against the petitioner. The

maximum punishment for the said offence is imprisonment for

a period of five years. Investigation is completed. Petitioner is
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CRL.P No. 100468 of 2024

aged about 20 years and his custody is not required.

Accordingly, he prays to allow the petition.

7. Per contra, learned AGA and the learned Counsel for

respondent no.2 have opposed the petition. They submit that

the victim is aged below 12 years and the petitioner has

sexually assaulted her. They also submit that in the event the

petitioner is enlarged on bail, he is likely to tamper with the

prosecution witnesses. Accordingly, they pray to dismiss the

petition.

8. Respondent no.2 had approached the police on

07.12.2023 after she was allegedly informed by her minor

daughter that the petitioner had sexually assaulted her on the

said date at about 7.00 p.m. Immediately thereafter, the victim

girl was subjected to medical examination. The doctor who had

medically examined the victim in the early hours of

08.12.2023, had also recorded her statement. The doctor has

opined that there was no penetration and only an attempt was

made. He also has opined that there is no evidence of any

forcible sexual intercourse and has further observed that

hymen of the victim was intact and no seminal stains were
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CRL.P No. 100468 of 2024

found on local examination. No injuries on the body of the

victim girl was found and there was no evidence of recent

forceful sexual intercourse. The statement of the victim girl

under Section 164 Cr.PC was recorded by the jurisdictional

Magistrate on 11.12.2023. In the said statement, the victim girl

has stated that on 07.12.2023, petitioner had taken her to the

house of Nagawwa which was vacant and after removing her

clothes, he had touched her private parts. She has not stated

that the petitioner had either inserted his penis to her vagina,

mouth, urethra or anus, nor has she stated that he had

inserted any object or a part of the body, not being the penis,

into her vagina, urethra, anus or mouth.

9. The only serious allegation made by the victim in her

Section 164 Cr.PC statement against the petitioner is, that he

had touched her private parts and she has also stated that at

that time her sister came to the house of Nagawwa, and

therefore, petitioner opened the door and ran away.

10. Considering the medical evidence as well as the

statement of the victim girl recorded under Section 164 Cr.PC,
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CRL.P No. 100468 of 2024

a serious doubt arises as to whether the alleged offences get

attracted against the petitioner.

11. Learned Counsel for the petitioner has strenuously

contended that the alleged offices at the most would attract the

offence under Section 8 of the POCSO Act and it is submitted

that the maximum punishment for the said offence is

imprisonment by five years.

12. The petitioner is an youngster aged about 20 years and

he has no criminal antecedents. Investigation in the case is

completed and charge sheet has been filed. Continued

detention of the petitioner in custody is likely to have adverse

impact on his future prospects. The apprehension of the

respondents can be taken care of by imposing appropriate

conditions while granting bail to the petitioner. Accordingly, the

following order:

13. Petition is allowed. The petitioner is directed to be

enlarged on bail in Crime No.222/2023 registered by

Naragunda Police Station, Gadag District, for the offences

punishable under Sections 376AB, 506 IPC and Sections 4 & 6
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CRL.P No. 100468 of 2024

of the Prevention of Children from Sexual Offences Act, 2012,

subject to the following conditions:

i. The petitioner shall execute personal bond for a sum
of Rs.1,00,000/- with two sureties for the likesum to
the satisfaction of the jurisdictional Court;

ii. The petitioner shall appear regularly on all the dates of
hearing before the Trial Court unless the Trial Court
exempts his appearance for valid reasons;

iii. The petitioner shall not directly or indirectly threaten
or tamper with the prosecution witnesses;

iv. The petitioner shall not leave the jurisdiction of the
Trial Court without permission of the said Court until
the case registered against him is disposed off;

v. The petitioner shall not visit Naragund till the case
registered against him is disposed of.

Sd/-

JUDGE

KK
CT:GSM
List No.: 1 Sl No.: 17

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