Allowed

Imrankhan S/O Hanif Sab v. the State of Karnataka

Karnataka HC14 Sept 2023CRL.A/100117/2023

Case brief

AI extract

What is this about?

This criminal appeal sought regular bail for an accused facing child sexual offences and SC/ST atrocity charges. The High Court held investigation complete and approved bail subject to stringent conditions to ensure witness safety.

What did the court decide?

Criminal appeal allowed; impugned order set aside; appellant enlarged on bail subject to personal bond of Rs. 50,000, two sureties, address proof, no witness tampering, no criminal activity, and regul

Imrankhan S/O Hanif Sab Vs the State of Karnataka — Caste Atrocities | Karnataka HC (2023)

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NC: 2023:KHC-D:10681 CRL.A No. 100117 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE J.M.KHAZI

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CRIMINAL APPEAL NO. 100117 OF 2023

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BETWEEN:

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IMRANKHAN, S/O. HANIF SAB, AGE: MAJOR, OCC: TEACHER, R/O: HANSI VILLAGE, H.B.HALLI, TQ & DIST: VIJAYANAGAR-560040.

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…PETITIONER

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(BY SRI. JAGADISH PATIL, ADVOCATE)

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AND:

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CHANDRASHEKAR LAXMAN KATTIMANI

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Date: 2023.09.15 11:10:43 +0530

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THE STATE OF KARNATAKA, THROUGH KOTTUR POLICE STATION, NOW REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH AT DHARWAD-580008.

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TIPPANAIK (FATHER OF VICTIM) AGE: 50 YEARS, OCC: AGRICUTLURE, R/O. DUPADAHALLI TANDA, KOTTUR, TQ & DIST: VIJAYANAGARA-560040.

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…RESPONDENTS (BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1; NOTICE TO R2 SERVED)

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THIS CRIMINAL APPEAL IS FILED U/SEC. 14A(2) OF SC/ST ACT, 2015 R/W 439 CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT OF REJECTION OF BAIL APPLICATION, PASSED BY THE I ADDL. DISTRICT AND SESSIONS COURT, AT BALLARI VIDE ITS ORDER DATED 02.03.2023 IN KOTTUR P.S. CRIME

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NO.217/2022 AND ENLARGE THE APPELLANT/ACCUSED NO.1 ON BAIL IN KOTTUR P.S. CRIME NO.217/2022, PENDING ON THE FILE OF I ADDL. DISTRICT AND SESSIONS JUDGE, AT BALLARI, FOR THE OFFENCE PUNISHABLE U/SEC. 6, 4(1) OF POCSO ACT, 2012, SECTION 3(1)(w-1), 3(2)(v) OF THE SC AND ST (PREVENTION OF ATROCITIES) ACT, 2015, SECTION 376(2)(N), 376(2) (1), 366 AND 363 OF IPC.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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In this appeal filed under Section 14A(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 2015 r/w Section 439 Cr.P.C. appellant who is arraigned as accused No.1 is seeking regular bail in Crime No.217/2022 of Kottur Police Station for the offences punishable under Sections 376(2)(n), 376(2)(l), 366, 363 of Indian Penal Code ('IPC', for short), Sections 6, 4(1) of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’, for short) and Sections 3(1)(w), 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 2015 (hereinafter referred to as ‘SC and ST (POA) Act’).

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In support of his appeal, the appellant has

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pleaded that he has not committed the alleged offences and he is falsely implicated. He is law abiding and peace loving citizen. Even if the entire allegations made in the complaint are taken on its face value, it does not make out a case for the prosecution. There is inordinate delay in lodging the complaint and no explanation is forthcoming. As on the date of complaint, the prosecutrix was major. Only to attract the provisions of POCSO Act, a story is concocted that the alleged offence took place on 19.04.2019 and/or on 19.09.2019 the prosecutrix was going on changing her version from time to time. Appellant is arrested on 03.12.2022 and since then he is in judicial custody. Appellant is ready and willing to abide by any conditions that may be imposed and offer substantial surety to the satisfaction of the trial Court prays to allow the appeal, set aside the order of the trial Court and grant him bail.

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Learned High Court Government Pleader has filed statement of objections stating that initially a missing complaint was registered in Crime No.217/2022 of Kottur Police Station on the basis of complaint filed by Tippanaik, the father of the prosecutrix regarding missing of his daughter since 29.11.2022. However at the instance of the prosecutrix, this complaint was filed on 03.12.2022 and based on it case is registered for the offences punishable under Sections 376(2)(n), 376(2)(l), 366, 363 of IPC, Sections 6, 4(1) of the POCSO Act and Sections 3(1)(w), 3(2)(v) of SC and ST (POA) Act.

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3.1 The complaint averments reveal that the prosecutrix was studying in Murarji Desai Residential School of Hampasagar. Appellant was a guest teacher teaching Hindi subject. Taking undue advantage of the said situation, on 19.04.2019 at about 1.30 p.m. while the prosecutrix came out to the college, appellant took her on his motorcycle to Kandagal reserve forest area and committed rape on her. Believing the words of the

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appellant that he would marry her, complainant did not disclose this fact. The appellant committed similar acts on the prosecutrix on two more occasions. Thereafter he took her to Yalnoda village of Tipatur with the help of accused No.2 and 3. Thereafter the concerned police authorities apprehended the appellant and secured the prosecutrix and she lodged the complaint.

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3.2 Both the prosecutrix and appellant are subjected to medical examination, which reveal that the prosecutrix is sexually assaulted by the appellant. She is also given her statement u/sec.164 Cr.P.C. implicating the appellant. After conducting detailed investigation, charge sheet is filed. As per the date of birth of the prosecutrix as on the date of incident, she was a minor and the provisions of POCSO Act are attracted. In the event of granting bail, the appellant may threaten or tamper with the witnesses and also abscond and thereby protract the proceedings and prays to dismiss the appeal.

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Heard the arguments and perused the records.

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The complainant is the prosecutrix. According to her, she studied 6th to 10th standard in Murarji Desai residential school. At that time appellant was teaching Hindi subject. She joined PUC at Shri. Kottureshwar P.U. College. When she was studying in PUC, the appellant used to call her over cell phone of his father and speak to her. He promised to marry her and she agreed for the same. In this background, on 19.04.2019 at 1.30 p.m. after the college hours, when she came out of college, the appellant took her to Kandagal reserve forest area and committed sexual assault on her. Later he brought and left her at her Dupadahalli tanda. He again took her twice and committed sexual assault on her.

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Again on 29.11.2022 at 10.30 a.m., the appellant came to Dupadahalli tanda and took her on his motor bike to Tiptur to the house of his brother. There she stayed with appellant for one night and on the next

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day, she was sent to Yelnoda village and stayed there till 02.12.2022. During this period also, she was sexually

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assaulted by appellant. On 02.12.2022 at 05.00 p.m., both the appellant and prosecutrix came to Tumkur in a bus. On 03.12.2022, appellant left her at Kudalagi. In respect of her missing, her father had given a missing complaint. After she returned from Tiptur, she has lodged complaint.

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Based on the complaint, the concerned Police

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have registered case in Crime No.217/2022 and taken up investigation.

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Both appellant and prosecutrix are subjected to

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medical examination. It reveal that the hymen is ruptured. However no external injuries are found on her person.

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After the investigation, charge sheet is filed against accused Nos.1 to 3.

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Accused Nos.2 and 3, who are brother and sister-in-law of appellant are already granted bail. During the investigation, the appellant was arrested on

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03.12.2022 and since then, he is in judicial custody. Though it is alleged that the first incident wherein appellant sexually assaulted the complainant is on 19.04.2019. She has chosen to file the complaint after lapse of 3 years and 8 months. In her further statement, the prosecutrix has changed the date of first assault as 19.09.2020. As per this, the delay caused in filing the complaint is 3 years 3 months.

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As already investigation is completed and charge sheet is filed. The provisions of SC and ST (POA) Act are based on the fact that prosecutrix belong to schedule caste. When the complaint was filed, the prosecutrix has attained the age of majority. Having regard to the fact that already investigation is completed and charge sheet is filed, the custodial presence of the appellant is no longer required for investigation. However there is apprehension on the part of prosecution that he may threaten or tamper with the witnesses, which can be overcome by imposing stringent conditions. Taking into

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