Allowed

Kumar @ Shivakumar S/O Somanna Radder v. the State of Karnataka

Karnataka HC21 Nov 2019CRL.P/101649/2019

Case brief

AI extract

What is this about?

A criminal bail petition filed under Section 439 Cr.P.C. in a case alleging offences under Sections 376(2)(n) and 417 IPC was allowed. The court found prima facie lack of evidence for rape due to alleged consensual acts and granted bail subject to conditions.

What did the court decide?

Bail granted on executing a personal bond of Rs. 1,00,000 with two sureties for the like sum.

Kumar @ Shivakumar S/O Somanna Radder Vs the State of… — Bail and Remand | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 21^{s t} DAY OF NOVEMBER 2019

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BEFORE

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THE HON’BLE MR. JUSTICE P.G.M.PATIL

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CRIMINAL PETITION NO.101649/2019

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BETWEEN

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KUMAR @ SHIVAKUMAR S/O SOMANNA RADDER AGE: 22 YEARS, OCC: COOLIE, R/O: KALAKERI VILLAGE, TQ: MUNDARAGI, DIST: GADAG.

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... PETITIONER

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(By SRI.K L PATIL, PATIL)

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AND

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THE STATE OF KARNATAKA THROUGH MUNDARAGI POLICE STATION, DIST: GADAG. REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENCH AT DHARWAD.

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... RESPONDENT

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(By SMT. SEEMA SHIVA NAIK, HCGP)

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THIS CRIMINAL PETITION IS FILED U/SEC.439 OF CR.P.C., PRAYING TO GRANT BAIL TO THE PETITIONER IN MUNDARAGI POLICE STATION CRIME NO.86/2019 WHICH IS REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTION 376(2)(N) AND 417 OF I.P.C; BAIL APPLICATION IS FILED BY THE ADVOCATE FOR PETITIONER U/SEC.439 OF CR.P.C. IN CRL. MISC. NO.313/2019 BEFORE THE PRL. DISTRICT AND SESSIONS JUDGE, GADAG, HAS BEEN DISMISSED.

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

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ORDER

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This is a bail petition filed under section 439

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of Cr.P.C., seeking to enlarge the petitioner on bail in Crime No.86/2019 of Mundargi police station for the offence punishable under section 376(2) and 417 of IPC.

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The case of the prosecution in brief is that the complainant/victim herself lodged the complaint before the respondent-police on 03.07.2019. She has alleged in the complaint that the accused who is also resident of her village used to come to her house and he was telling her

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that he is in love with her. She was also talking to him. On 25.10.2018 at about 5.00 p.m., accused called her to come out of the village as he wanted to talk to her. Accordingly, she went with the accused and the accused assured that he would marry her and he forcibly had sexual intercourse with her. When she asked her why he did so, the accused told her not to disclose the same to her family members and that he would marry her. Therefore, she did not tell about the said incident. Subsequently, she had regular sexual intercourse with the accused. Thereafter, her marriage was fixed with one Prakash son of Gadigeppa Badiger. When she told the same to the accused, he asked her to pretend as if she has become unconscious at the time of engagement. Thereafter, he would marry her. Further, her marriage was performed with the said Prakash. On 23.05.2019, when she had gone to her husband’s house after marriage, she vomited. She was taken to the hospital where

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it was disclosed that she was pregnant. Her husband’s family members brought her to the village and left her in the parents house. Thereafter, she informed her parents about the sexual intercourse by the accused and therefore she filed a complaint as the accused refused to marry her.

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The petitioner has stated that he has been falsely implicated in the case. It is submitted that on bare perusal of the complaint averments, it is very much clear that the complainant and the petitioner were having love affair and as such the allegations made against the petitioner are only made to harass him. There is delay of 10 months in lodging the complaint. The averments in the complaint clearly goes to show that the accused and the complainant have attained majority and the alleged incidents have taken place with mutual consent of each accused and the

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complaint. There is absolutely no evidence to show that the petitioner has committed the alleged offence. He is permanent resident of Mundargi, having movable and immovable properties and there is no chance of fleeing away from the jurisdiction. He is ready to abide the conditions which may be imposed by the Court and to furnish adequate sureties to the satisfaction of the Court.

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Heard the learned counsel for the

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petitioner and the learned High Court Government Pleader.

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The allegations in the complaint goes to show that the complainant initially opposed the act of the accused for having sexual intercourse with her. Subsequently, she had regular sexual intercourse with the accused. It is also not

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disputed that the complainant was major and aged about 20 years as on the date of the alleged

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offence on 25.10.2018. After filing the complaint, when the complainant was examined at Gadag Institute of Medical Science, Gadag on 03.07.2019, complainant/victim has made a statement before the medical officer that she know the accused since 6-8 months. He is from her own village. They both liked each other and had consensual intercourse for about 4-5 times in 6-7 months period. It is further stated that last sexual contact was two months back. But later he refused to marry her. Therefore, as per the statement made by the complainant before the medical officer, that with her consent she had sexual contact with the accused. Therefore prima facie the offence under Section 376(2)(n) of IPC appears to be not made out. The allegations in the complaint and the other material available goes to show that the complainant had consensual sexual contact with the accused. The complainant has further stated that the accused had promised to

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marry her, which he breached. Such an act may amount commission of the offence under Section 417 of IPC. It is submitted that the respondentpolice have completed the investigation and have already filed the charge-sheet. The petitioner is in judicial custody since 05.07.2019. He is not required for further investigation in the matter. It is also not disputed that the petitioner is permanent resident of Kalakari village, having movable and immovable properties and residing with kith and kin.

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Under these circumstances, this Court is of the considered opinion that the petitioner may be enlarged on bail by imposing necessary conditions to see that he will not tamper the prosecution witnesses in any manner and shall appear before the Court regularly and shall cooperate in the trial. Accordingly this Court proceed to pass the following:

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ORDER

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The bail petition filed under section 439 of Cr.P.C. is allowed. The petitioner is ordered to be enlarged on bail in Crime No.86/2019 of Mundaragi police Station on his executing a personal bond for a sum of `1,00,000/- with two sureties for the like sum to the satisfaction of the Court, on the following conditions.

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The petitioner shall not threaten or tamper the prosecution witnesses in any manner.

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The petitioner shall appear before the concerned Court regularly and co-operate in concluding the trial.

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The petitioner shall not leave the jurisdiction of the trial Court without prior permission.

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Sd/-

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JUDGE

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KGK

Kumar @ Shivakumar S/O Somanna Radder v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Kumar @ Shivakumar S/O Somanna Radder v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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