Dismissed

Sri N Prakash v. State of Karnataka by

Karnataka HC9 Nov 2022CRL.P/7991/2022

Case brief

AI extract

What is this about?

In a bail application under Section 439 Cr.P.C. regarding kidnapping and sexual assault charges, the Karnataka High Court rejected the petition, holding that discrepancies in the minor victim's statements and the gravity of the offences precluded exercise of bail discretion.

What did the court decide?

The petition for regular bail stands dismissed; the petitioner is required to adhere to judicial custody.

Sri N Prakash Vs State of Karnataka by — Child Sexual Offences (POCSO) | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE RAJENDRA BADAMIKAR

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CRIMINAL PETITION NO.7991/2022

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BETWEEN:

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SRI. N. PRAKASH S/O NAGASUNDRA, AGED ABOUT 31 YEARS, R/AT ARALIPURA VILLAGE, CHAMARAJANAGARA TALUK-560018.

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...PETITIONER

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(BY SRI. VINOD PRASAD, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY RURAL POLICE STATION, CHAMARAJANAGAR, REPRESENETD BY SPP, HIGH COURT OF KARNATAKA, BANGALORE-560001.

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SMT. SAVITHA W/O DODDASWAMY, AGED ABOUT 34 YEARS, RESIDENT OF CHIKKATTUPPUR VILLAGE, GUNDLUPET TALUK-571111 CHAMARAJANAGARA DIST.

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…RESPONDENTS

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(BY SMT. RASHMI JADHAV, HCGP; R2 SERVED)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CODE OF CRIMINAL PROCEDURE, PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.43/2022 OF CHAMARAJANAGAR RURAL P.S., CHAMARAJANAGAR FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 363, 376, 376(2)(N) OF IPC AND SECTION 4 AND 6 OF POCSO ACT PENDING BEFORE THE HONBLE ADDITIONAL DISTRICT AND SESSIONS JUDGE AND FTSC-1, CHAMARAJNAGAR AND SPECIAL JUDGE FOR POCSO CASES IN SPL.C.NO.116/2022.

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

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ORDER

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This petition is filed by the petitioner/Accused

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under Section 439 of Cr.P.C. seeking regular bail in Crime No.43/2022 of Chamarajanagar Rural Police Station, initially registered for the offence punishable under Section 363 of IPC and subsequently after investigation charge sheet came to be filed for the offence punishable under Sections 363, 376, 376(2)(N) of IPC and under Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012, (for short ‘POCSO Act’) pending on the file of Addl. Dist. And Sessions Judge and FTSC-1, Chamarajanagar and Special Judge for POCSO cases.

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2. According to the case of the prosecution the

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victim who is the daughter of the complainant was aged about 15 years and was residing along with her grand mother studying 9^th standard in Government Secondary School Yanagahalli village. It is further alleged that on 20.04.2022 when complainant’s mother had been to dairy to supply milk and when she returned, she did not find her grand daughter in the house and after making efforts to search her, a missing complaint came to be filed against unknown person and same is registered for the offence under Section 363 of IPC. However, during the course of the investigation, the investigating officer got information regarding victim being in custody of the present petitioner and he apprehended both of them and it is revealed that on 20.04.2022 in the early morning the petitioner called the victim through mobile phone and asked her to come to Chamarajanagar and when she went to Chamarajanagar he took her to

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Puradapalyam, Sulur Taluk, Coimbatore in Tamil Nadu and there he joined a job in the farm house of Pws.5 and 6. Then he and the victim stayed in the said farm house from 22.4.2022 to 24.04.2022 and all these days during night hours the petitioner had committed sexual assault on victim girl. The investigating officer located the location of the victim and he went to the spot and apprehended both of them and they were brought. The statement of the victim was recorded and both the petitioner as well as victim were subjected to medical examination. Date of birth of the victim is 30.10.2007. She was aged about 15 years as on the date of the commission of offence. After recording the statement of the witnesses and getting the medical examination report, the investigating officer has submitted a charge sheet for the offences under Sections 363, 376, 376(2)(n) of IPC and under Sections 4 and 6 of POCSO Act. The petitioner was produced before the learned magistrate on 26.04.2022 and was remanded to judicial

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custody. The petitioner has moved the regular bail petition and the learned Sessions judge/Spl. Court has rejected the bail petition. Therefore, the petitioner is before this Court.

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Heard the arguments advanced by the learned counsel for the petitioner and learned High Court Government Pleader for respondent-State.

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Perused the records.

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During the course of the arguments, learned

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counsel appearing for the petitioner has invited the attention of the Court to the statement of the victim recorded under Section 164 of Cr.P.C dated 10.05.2022 wherein the victim though admitted proceeding along with present petitioner, has not disclosed any sexual assault. Hence, he would contend that the 161 of Cr.P.C. statement of the victim and 164 of Cr.P.C. statement are quite contrary. He has also invited the attention of the Court to the medical evidence and contended that

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with any stringent conditions the petitioner may be enlarged on bail.

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Per contra learned HCGP would seriously opposed the bail petition contending that 161 of Cr.P.C. statement and 164 of Cr.P.C. statement are contradictory to each other which itself clearly creates suspicion regarding the influence of the petitioner on the victim. She would also assert that the victim was aged about 15 years and medical evidence clearly establish sexual assault and as such she would contend that considering the nature and gravity of the offence, the bail petition may be rejected.

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Having heard the arguments and perusing the records, it is not under serious dispute that victim is hardly aged about 15 years. Further accused is aged about 31 years. The victim is younger to him by 16 years. The allegations of the prosecution disclose that the petitioner secured the victim by telephonic call to

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Chamarajanagar and thereafter he eloped along with her to Tamil Nadu wherein, he has committed sexual assault on the victim. No doubt the medical records produced pertaining to victim disclose that there is no evidence of recent sexual intercourse. However, the medical opinion further disclose that the sexual violence cannot be ruled out. The records further disclose that hymen was not intact and admittedly, the victim was hardly aged about 15 years and the petitioner being 16 years older to her, secured her and then eloped with her. Hence, it is evident that ingredients of Section 363 of IPC are directly applicable. Further the medical report pertaining to the petitioner disclose that there is nothing to suggest that he is incapable of performing the sexual act. He stayed with the victim girl for 3 nights and the allegations were sexual assault in this period. Her consent has no relevancy since she was a minor. No doubt the seminal stain and other things were not detected. But admittedly the victim and petitioner have

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changed their clothes and had taken bath and as such this evidence does not have any much relevancy. The medical evidence further disclose that the puberty was on set when the victim was aged about 11 years itself.

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Learned counsel for the petitioner has invited the attention to 164 of Cr.P.C. statement said to have been given by victim on 10.05.2022 before the learned magistrate wherein, she admitted that she has accompanied the petitioner and stayed in Puradapalyam village till 26.04.2022 from 22.04.2022 for four days. Her 164 of Cr.P.C. statement disclose that she has not whispered the physical relationship between the petitioner and the victim, but at the same time she has also not specifically denied the fact that she has no physical relationship with the petitioner in this period. This 164 of Cr.P.C. statement completely runs in contrary to 161 of Cr.P.C. statement recorded on the same day by the investigating officer.

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However, quite contrary to the same, when

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the bail petition was filed before the Spl. Court the victim has personally appeared and seriously objected for granting bail to the petitioner. This aspect was considered in detail by the learned Spl. Judge and she has appeared before the learned sessions judge on 16.05.2022 by objecting the bail petition. But on 10.05.2022 she has given a contrary statement. Considering these aspects, the apprehension raised by the learned HCGP regarding her behaviour and influence of the petitioner on the victim cannot be ruled out.

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Looking to these facts and circumstances, prima-facie there is material evidence to show that the petitioner has eloped with the victim girl by kidnapping her from the lawful custody of the minor guardian and then developed physical relationship with her having knowledge that she is hardly 15 years, though he is aged about 31 years. Such offences cannot be taken in a

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lighter way and considering the conduct of the victim, the suspicion will definitely arise regarding the influence of the petitioner on the victim though he is in custody.

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Considering these facts and circumstances, this is not a fit case wherein the discretion can be exercised in favour of the petitioner and as such considering the gravity of the allegations made, the petition being devoid of any merits does not survive for consideration and needs to be rejected. Accordingly, I proceed to pass the following:

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ORDER

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The petition stands dismissed .

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Sd/JUDGE

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NS CT:NR

Sri N Prakash v. State of Karnataka by

Case brief

What is this about?

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Sri N Prakash v. State of Karnataka by

Case brief

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