Allowed

Devappa S/O Ayyappa Jadiyar v. the State of Karnataka

Karnataka HC11 Feb 2013CRL.P/15076/2013

Case brief

AI extract

What is this about?

High Court allowed bail to the petitioner accused of kidnapping and rape. The Court emphasized the critical inconsistency in age evidence and held that until the prosecution proves the victim was under 16 beyond doubt at trial, there is no disentitlement to bail, especially given allegations of consensual relations.

What did the court decide?

Petitioner enlarged on bail subject to depositing self-bond and providing a solvent surety named conditions.

Devappa S/O Ayyappa Jadiyar Vs the State of… — Child Sexual Offences (POCSO) | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT GULBARGA

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DATED THIS THE 11^TH DAY OF FEBRUARY, 2013

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BEFORE

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THE HON’BLE MR.JUSTICE ANAND BYRAREDDY

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CRIMINAL PETITION NO.15076 OF 2013

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BETWEEN:

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Devappa S/o Ayyappa Jadiyar Age: 22 years, Occ: Agriculture, R/o Malag (N) Village, Taluk: Chittapur, District: Gulbarga.

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… Petitioner

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(Smt. Anuradha M Desai, Advocate)

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AND:

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The State of Karnataka Through Wadi Police Station, Taluk: Chittapur, District: Gulbarga, Represented by State Public Prosecutor, High Court of Karnataka, Circuit Bench, Gulbarga.

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… Respondent

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(Shri S S Aspalli, Government Pleader)

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This Criminal Petition is filed under Section 439 of Code of Criminal Procedure, 1973, praying to release the petitioner in Crime No.92/2012 of Wadi Police Station taluk: Chittapur,

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which is registered for the offence punishable under Section 34, 366 (A) of the Indian Penal Code, 1860.

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This petition coming on for orders this day, the Court made the following:

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O R D E R

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Heard the learned counsel for the petitioner and the

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learned Government Pleader for the respondent.

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The petitioner is accused of offences punishable under

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Sections 366 (A), 376 and 109 read with Section 34 of the Indian Penal Code, 1860 (Hereinafter referred to as the ‘IPC’,

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for brevity) along with two others, namely, his father and a relative of the petitioner. It is the case of the prosecution that the petitioner herein had, on 23.06.2012 at about 5.00 AM, at the instigation of his father and his relative, kidnapped a minor girl aged about 14 years and took her to the house of his relative situated at Maktapur and committed rape on her and the petitioner has been charge sheeted on this account. The petitioner having approached the Court below seeking bail, the

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Court has opined that the victim was a minor and hence the consent alleged to have been given, could not be valid consent. The offence is punishable with imprisonment for life and taking into consideration, the overt acts attributed to the other accused,

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though they had been granted anticipatory bail, there is over whelming evidence against the petitioner and therefore has rejected the petitioner’s application for bail. It is in that background that the present petition is filed.

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The learned counsel for the petitioner would point out

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that, no doubt, it is the law in terms of Section 375 of the IPC that, it would amount to rape if the petitioner had sexual intercourse with the victim with or without her consent, if she was aged below 16 years. Hence, it is necessary to ascertain whether the age of the victim could be stated with any certainty. Further, having regard to the circumstance that the complainant herself has stated that there was a continued relationship where the petitioner and the victim had sex over a period of one year

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prior to the incident, and that they had moved in public places before the alleged incident and that they had stayed for four nights in a relative’s house before the petitioner was apprehended, would indicate that there was consensual sex. The question whether the victim was really aged less than 16 years is also not apparent from the record. On the other hand, there is total inconsistency, in that the complainant has claimed that she was 14 years, her parents have stated that she was 12 years, the school records produced, indicate that she was 15 years and the medical report has estimated the age of the victim at 16 to 17 years. Therefore, it cannot be, with any certainty, be held that the victim was below 16 years. Hence, the view of the Court below that she was a minor and may be aged below 16 years, is a presumption that would result in a miscarriage of justice, as the prosecution is required to establish this factum beyond all reasonable doubt, in order that the petitioner could be visited with punishment, which is indeed stringent.

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However, since the petitioner is not before this Court seeking acquittal, but only to seek bail, in the above circumstances it cannot be said that the acts attributed to the petitioner are of such a grave nature, as would disentitle him for bail, especially, the circumstance that there was consensual sex between the petitioner and the victim.

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The learned Government Pleader would strongly oppose the petition and would submit that, viewed in any fashion, notwithstanding the circumstance as to the age of the victim, she is still a minor and this would seriously portend against the petitioner as he would have no defence contending that there was consensual sex as the victim was a minor and seeks that the petition for bail be rejected.

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Given the above facts and circumstances, as rightly contended by the learned counsel for the petitioner, the age of the victim would have to be established with certainty and given the statement made by the complainant herself that there

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was indeed willing participation by the victim, hence would be crucial to address the exact age of the victim. Given the inconsistency, it is safer to hold the petitioner guilty only when the prosecution is able to establish its case as regards the exact age of the victim, at the trial. Hence, the petitioner has indeed made out a case for grant of bail.

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Accordingly, the petition is allowed. The petitioner

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shall be enlarged on bail, subject to the following conditions:

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i. The petitioner shall offer a self bond for a sum of Rs.50,000/- (Rupees Fifty Thousand Only), with a solvent surety for a like sum to the satisfaction of the Trial Court.

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ii. The petitioner shall not leave the jurisdiction of the Court below without the leave of the Court.

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iii. The petitioner shall offer all cooperation in the investigation of the offence.

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iv. The petitioner shall make himself available for further investigation at all points of time.

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v. The petitioner shall attend the Court on all dates of hearing of the case.

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vi. The petitioner shall not, in any manner seek to tamper with the prosecution evidence.

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Sd/-

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Devappa S/O Ayyappa Jadiyar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Devappa S/O Ayyappa Jadiyar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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