Allowed

Shivanand S/O Mallappa Bajantri v. the State through Shankeshwar Ps

Karnataka HC29 May 2023CRL.A/100154/2023

Case brief

AI extract

What is this about?

Criminal Appeal filed to set aside an order rejecting a regular bail application in a case involving rape, POCSO, and child marriage offences. The High Court allowed the appeal, relying on a DNA report that excluded the appellant as the biological father of the child, directing his release on bail subject to conditions.

What did the court decide?

Appeal allowed; impugned order set aside; Appellant released on bail subject to executing bond for Rs. 1,00,000/-, not leaving jurisdiction, producing address proof, not tampering with witnesses, and

Shivanand S/O Mallappa Bajantri Vs the… — Pension and Retirement Benefits | Karnataka HC (2023)

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1 - CRL.A No. 100154 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 29^TH DAY OF MAY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ANIL B KATTI CRIMINAL APPEAL NO. 100154 OF 2023 (U/S 14 A(2) of SC

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and ST ACT-)

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BETWEEN:

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SHIVANAND S/O MALLAPPA BAJANTRI AGE. 26 YEARS, OCC. COOLIE, R/O. NEAR NEW APMC, GAVISIDDANA MADDI, ATHANI, GAVASIDDAMADI, TQ. ATHANI, DIST. BELAGAVI 591304

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…APPELLANT

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(BY SRI. PRASHANT S. HOSMANI, ADV.)

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AND:

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THE STATE THROUGH SHANKESHWAR PS REPRESENTED BY SPP HIGH COURT OF KARNATAKA

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Digitally signed by J MAMATHA J MAMATHA Date: 2023.06.01 10:35:11 +0530

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DHARWAD BENCH

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CHILD DEVELOPMENT OFFICER WOMEN AND CHILDREN WELFARE DEPARTMENT, HUKKERI, TQ. HUKKERI, DIST. BELAGAVI - 591021

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…RESPONDENTS

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(BY SRI. PRAVEEN UPPAR, HCGP FOR R1 AND R2)

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THIS CRIMINAL APPEAL IS FILED U/SEC. 14A(2) OF SC/ST ACT SEEKING TO SETTING ASIDE THE ORDER DATED 06.03.2023 REJECTING THE REGULAR BAIL APPLICATION FILED BY THE PETITIONER IN CRL.MISC NO. 208/2023 BY THE

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2 - CRL.A No. 100154 of 2023

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COURT OF ADDL. DISTRICT AND SESSIONS JUDGE-FTSC-1, BELAGAVI, IN SANKESHWAR POLICE STATION CRIME NO. 272/2022 AND ENLARGE THE PETITIONER ON REGULAR BAIL IN SANKESHWAR POLICE STATION CRIME NO. 272/2022 FOR THE OFFENCES P/U/SEC. 376(1), 376(2)(n) OF IPC AND SECTION 4, 6 OF POCSO ACT 2012 AND SEC. 09, 10, 11 OF PROHIBITION OF CHILD MARRIAGE ACT 2006, AND SECTION 3(2)(v) OF THE SC AND ST PREVENTION OF ATROCITIES ACT, 1989 AMENDMENT ACT 2015.

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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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Appellant-accused No.2 feeling aggrieved by rejection of Regular Bail application filed under Section 439 of Cr.P.C. on the file of District and Sessions Judge, FTSC-I Belagavi, in Crl.Misc. No.208/2023, dated 6.3.2023, preferred this appeal.

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Parties to the appeal are referred with their ranks before the Trial Court for the sake of convenience.

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The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that complainant is residing in a hut situated at APMC market yard, Sankeshwar along with her family members. Accused No.1 named in the FIR came in contact with complainant. On account of such acquaintance, accused No.1 persuaded complainant to join with him for moving around. Accused took complainant and carried to cattle

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3 - CRL.A No. 100154 of 2023

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shed in Sankeshwar and committed penetrative sexual assault on complainant. Subsequently also penetrative sexual assault was committed for about 4-5 times. Thereafter, complainant was given in marriage during the month of March or April with appellant-accused No.2 and she stayed in the marital home for about one month. Where, she was found to be pregnant of three months. On coming to know about such pregnancy of complainant, accused No.2 gave divorce and thereafter, she started residing in her parental house. On 26.11.2022 at 3.00 a.m. complainant developed stomach pain and she was taken to Sankeshwar Government Hospital, where she delivered girl baby child at 5.20 a.m. On these allegations made in the complaint, investigation was carried out and charge sheet came to be filed.

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The bail application filed by appellant-accused No.2 under Section 439 of Cr.P.C. in Crl.Misc.No.208/2023 came to be rejected by the Trial Court vide order dated 6.3.2023.

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In response to notice, learned HCGP has appeared for respondent and filed objections opposing the bail application, contending that accused No.2 having knowledge that victimcomplainant is minor, has married and committed sexual

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4 - CRL.A No. 100154 of 2023

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intercourse during her stay in the matrimonial home. The victim was minor as on the date of incident. There are sufficient material evidence against the appellant-accused and therefore, prayed for dismissal of appeal.

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Heard the arguments of both sides.

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On the strength of complaint filed by victim, criminal law

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was set into motion by registering case in Sankeshwar Crime No.272/2022 for the offences punishable under Sections 376(1), 376(2)(N) of IPC and Sections 4 and 6 of POCSO Act, Section 3(2)(v) of SC/St PA Act, Sections 9, 10 and 11 of Prohibition of Child Marriage Act.

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The incident in question alleged by the complainant about accused No.1 committing penetrative sexual assault is on 1.11.2021. The family members and victim by suppressing the fact of pregnancy of victim preformed her marriage with accused No.2 on 22.4.2022, which is evident from 161 of Cr.P.C. statement given by victim before the investigating officer. On the basis of the said Statement of victim, appellantaccused No.2 was arrested on 8.1.2023 and since then he is in

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5 - CRL.A No. 100154 of 2023

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judicial custody. The investigation in this case is already completed and charge sheet has been filed.

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On going through the charge sheet material, it would go to show that accused No.1 developed acquaintance with complainant and persuaded her to accompany him. On account of such acquaintance, on 1.11.2021 prior to one year of filing the complaint, accused No.1 has committed penetrative sexual assault on victim-complainant. Thereafter, also accused No.1 committed penetrative sexual assault about 4-5 times. On account of accused No.1 having physical contact with victim, she was pregnant. However, victim and her family members by suppressing pregnancy of victim performed marriage of victim with appellant-accused No.2 on 22.4.2022. The victim complainant alleged to have stayed in the matrimonial home for about one month, wherein appellant-accused No.2 knowing that he has married minor victim and committed sexual inter course. The records would further goes to show that accused No.2 and his family members came to know that victim is pregnant of three months and thereafter, accused No.2 divorced victim, since then victim started residing in her paternal house. On 26.11.2022 at 3.00 a.m. victim complainant developed

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6 - CRL.A No. 100154 of 2023

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stomach pain and she was taken to Sankeshwar Government Hospital for treatment, on the same day at 5.20 a.m. she delivered to girl baby child.

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Appellant-accused No.2 has denied paternity of baby girl child born to victim–complainant. The pregnancy of victim was revealed during one month stay of her in the matrimonial home that she was pregnant of three months.

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The sample blood of victim/complainant, female baby born to victim and appellant No.2/accused was taken for DNA test. The DNA test report would go to show that the following opinion is recorded:

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a. Lakshmi d/o Subhash Bhajantri sample blood sent in item No.1 of DNA 036/2023 is included from being the biological mother and Shivaji @ Shivu s/o Ramu Sutar @ Badiger, sample blood sent in item Nos.1 of DNA 505/2022 is included from being the biological father of female baby, sample blood sent in item No.2 of DNA 036/2023.

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b. Shivanand Malappa Bhajantri s/o Mallappa Bhajantri, sample blood sent in item No.3 of DNA 036/2023 is excluded from being the

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7 - CRL.A No. 100154 of 2023

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biological father of female baby, sample blood sent in item No.2 of DNA 036/2023.

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If the DNA test report is taken into consideration then it is evident that appellant/accused No.2 is not biological father of baby girl born to victim/complainant. On the other hand, the DNA report would reveal that biological father is accused No.1 of baby girl born to the victim.

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The age of victim/complainant is stated to be 16 years in the complaint and it is recorded as 14 years while recording statement under Section 164 Cr.P.C. In the school report of victim, the date of birth is recorded as 15.07.2019. The allegation against appellant/accused No.2 is that he has committed sexual intercourse after marriage with minor victim/complainant. Whether the said sexual intercourse falls under any of the circumstances enumerated under Section 375 of IPC and further committed rape repeatedly against the will of victim, is a matter of trial. However, at present in view of the DNA test report appellant/accused No.2 is not biological father of baby girl born to complainant. If the offences under Section 376 (1) and 376 (2) (n) IPC and Sections 4 and 6 of POCSO Act, 2012, are proved then the question of invoking Section 3 (2) (v)

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8 - CRL.A No. 100154 of 2023

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of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 2015 would arise. The findings recorded by the trial Court in rejecting the bail application at paragraph 19 of its order cannot be legally sustained. In view of the reasons recorded as above, in my opinion, appellant/accused No.2 is entitled for bail. Consequently, proceed to pass the following:

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ORDER

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Appeal filed by appellant/accused No.2 is hereby allowed.

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The order passed by Addl. District and Sessions Judge – FTSC – 1, Belagavi, dated 06.03.2023 in Crl. Misc.

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No.208/2023 is hereby set aside.

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Appellant/accused No.2 is ordered to be released on bail subject to following conditions:

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i) Appellant shall execute personal bond and surety bond for a sum of Rs.1,00,000/- with one surety for like amount to the satisfaction of trial Court,

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ii) Appellant shall not leave the jurisdiction of the trial Court without its prior permission,

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9 - CRL.A No. 100154 of 2023

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iii) Appellant shall produce address proof document of himself and that of his surety subject to police verification,

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iv) Appellant shall not tamper with the prosecution witnesses in any manner,

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v) Appellant shall appear before the Court on every date of hearing before the trial Court, unless otherwise exempted for valid reasons.

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(Sd/-) JUDGE

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VB- from paragraphs 1 to 10 JM-from paragraph 11 till end List No.: 1 Sl No.: 16

Shivanand S/O Mallappa Bajantri v. the State through Shankeshwar Ps

Case brief

What is this about?

What did the court decide?

Shivanand S/O Mallappa Bajantri v. the State through Shankeshwar Ps

Case brief

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