The High Court of Karnataka, Dharwad Bench rejected a bail petition filed by an accused facing charges of aggravated sexual assault on a minor child under POCSO and IPC. The court declined bail pending the FSL report.
Bail petition rejected. Accused to remain in custody pending FSL report.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 21st DAY OF JULY 2022
BEFORE
THE HON’BLE MR.JUSTICE K. NATARAJAN
CRIMINAL PETITION NO.101969/2022
BETWEEN:
SRI. ALLAUDDIN S/O HAJARESAB NADAF AGED ABOUT 22 YEARS, OCC.COOLIE, R/O.AZAD ONI, HULAGUR, TQ.SHIGGON, DIST.HAVERI
.. PETITIONER
(BY SRI. T.M.NADAF, ADV. FOR SRI GANESH RAIBAGI, ADV.)
AND:
1 . THE STATE OF KARNATAKA REP BY P.I.KASABAPETH P.S.HUBBALLI BY ADDL SPP HIGH COURT OF KARANATAKA BENCH AT DHARWAD
2 . MOHAMMAD IDRUS S/O IBRAHIMSAB MUCHCHALE AGED ABOUT 47 YEARS, OCC.CENTERING WORK, R/O.COWLPETH, PB ROAD, HUBBALLI
.. RESPONDENTS (BY SMT. GIRIJA S. HIREMATH, HCGP. FOR RESPONDENT NO.1 AND 2 RESPONDENT NO.2 REQUESTED HCGP TO ARGUE CASE ON HIS BEHALF )
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C., SEEKING TO RELEASE THE PETITIONER ON REGULAR BAIL IN SPL. S.C.
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NO.34/2022 (CRIME NO. 24/2022 OF KASABAPETH PS), ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS AND SPECIAL JUDGE, DHARWAD, FOR THE OFFENCES PUNISHABLE U/SECs 6 AND 8 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENSES ACT, 2012 AND SECS 363 AND 376 IPC ON ACCEPTING SUBSTANTIAL SURETY OR SURETIES.
THIS PETITION COMING ON FOR ORDERS THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
This petition is filed by the petitioner/accused under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’ for brevity) for granting regular bail in Crime No.24/2022 registered by the Kasabapeth Police Station for the offence punishable under Sections 6 and 8 of the Protection of Children from Sexual Offences Act, 2012 and Sections 363 and 376 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’ for brevity).
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The representative of respondent No.2 is present and filed his written objections on behalf of respondent No.2. The same is taken on record.
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some jatra and she used to meet him every Tuesday. Accordingly, on 08.03.2022, he took her to Hulagur Darga Jatra and thereafter, he told, time is already over and there is no bus available and she has accompanied the accused to a hotel room where the accused committed sexual assault on her. Thereafter, in the guise of taking her to Hubballi, again he took her to Haveri. There also he committed rape on her on 10.03.2022 and thereafter he brought her back and left her near Gabbur circle. After knowing the incident from the victim, father of the victim filed a complaint to the police. The police after registering the case, arrested the petitioner on 13.03.2022. His bail petition came to be rejected by the learned Sessions Judge. Hence, he is before this Court.
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under Sections 3 and 5 of the POCSO Act. Even Section 376 will also not attract in view of the medical examination report. The medical examination report of the accused also reveals there is no recent sexual intercourse by him even though he is capable of doing sexual intercourse. Investigation is completed and charge sheet has been filed. Hence, prayed for granting bail.
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still awaited. That apart, the accused family tried to tamper the prosecution witnesses. Hence, prayed for dismissal of the petition.
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lodge there and in the night, he forcibly committed rape on her in spite of her resistance. Subsequently on 10.03.2022, he took her to Haveri district. There also, he kept her in a lodge and committed rape and thereafter he brought her back and left her at Gabbur cross, Hubballi. The complainant is of course a hearsay witness and he came to know about the incident only through the victim. The statement of the victim under Section 164 of Cr.P.C recorded by the Magistrate, she has categorically stated that the accused forcibly committed sexual assault on those days i.e. on 09.03.2022 and 10.03.2022 in a hotel room at Lakshmeshwar and at Haveri. Of course the victim not stated anything about sexual assault before the Doctor during medical examination. However, she has stated, she stayed with the accused in a hotel for a day and she has not stated the history of any sexual intercourse. On physical examination, it is seen hymen is not intact. The Doctors collected clothes, public hair, nail clippings, vaginal swabs and were sent for FSL and report is not yet received. Of course, the medical examination report of the accused shows, the accused is capable of doing sexual intercourse but there were no signs of suggesting any recent sexual intercourse. But on perusal of the statement of the
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victim, complaint and the medical examination report, especially, the physical examination report, suggest that the victim was subjected to sexual assault as hymen is not intact. Though investigation is completed and charge sheet has been filed but FSL report is still awaited. The complainant has also stated that the accused family is pressuring them to withdraw and comprise the case which reveals that they are trying to tamper with the prosecution witnesses.
Accordingly, the criminal petition is hereby rejected.
Sd/JUDGE
kmv
2 issues framed by the court
Whether bail should be granted to the accused facing charges of aggravated sexual assault under POCSO and IPC pending FSL report.
Whether the medical report regarding the condition of the hymen attracts contempt of court law.
3 provisions across 3 enactments
Sri. Allaudin S/o Hajaresab Nadaf
The State of Karnataka
Mohammad Idrus
K. Natarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
