Allowed

Ninganna v. the State of Karnataka by

Karnataka HC7 Aug 2023CRL.A/1164/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the criminal appeal, set aside the order rejecting the bail application, and released the appellant on regular bail in a case involving POCSO and IPC offences, subject to conditions including execution of a personal bond and appearance in court.

What did the court decide?

The order dated 09.02.2023 rejected is set-aside; the appellant is released on bail in Crl.Misc.No.89/2023 subject to execution of a personal bond for Rs.1,00,000 with one surety.

Ninganna Vs the State of Karnataka by — Child Sexual Offences (POCSO) | Karnataka HC (2023)

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NC: 2023:KHC:27747 CRL.A No. 1164 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL APPEAL NO. 1164 OF 2023

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BETWEEN:

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NINGANNA AGED ABOUT 24 YEARS S/O CHANDRAPPA R/AT YERAGOL VILLAGE AND POST, YADGIR TALUK YADGIR – 585 218.

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…APPELLANT

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(BY SRI TEJAS H, ADVOCATE)

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AND:

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA BY HIRIYUR RURAL POLICE CHITRADURGA REP BY STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BENGALURU – 560 001.

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SMT. KAVITHA W/O KUMARA NAIK R/AT NEAR SIDDAGANGA PU COLLEGE DOMBARAHALLI, MADANAYAKANAHALLI BANGALORE TOWN, DASUDI UMLANAIKANA TANDA CHIKKANAYAKANAHALLI TALUK TUMKURU DISTRICT – 562 162.

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…RESPONDENTS

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(BY SRI S VISHWA MURTHY, HCGP FOR R1 & R2)

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THIS CRL.A IS FILED U/S 14(A)(2) OF SC/ST (POA) ACT PRAYING TO RELEASE OF THE APPELLANT ON REGULAR BAIL IN SPL.C.No.193/2022 (CR.No.290/2022) REGISTERED BY HIRIYUR RURAL POLICE, CHITRADURGA/1^ST RESPONDENT FOR THE OFFENCE P/U/S 354(D), 376, 366(A), 34 OF IPC AND SECTIONS 4, 8, 12 OF POCSO ACT AND SECTION 9, 10 OF PROHIBITION OF CHILD MARRIAGE ACT AND SECTION 3(1)(w)(i)(ii) 3(2)(V) OF SC/ST (POA) ACT PENDING ON THE FILES OF BEFORE THE SPECIAL 2^ND ADDITIONAL DISTRICT AND SESSIONS JUDGE CHITRADURGA.

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

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JUDGMENT

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This appeal is filed by the appellant – accused No.1, praying to set-aside the order dated 09.02.2023 passed in Crl.Misc.89/2023, by Special II Additional District and Sessions Judge, Chitradurga, whereunder, the bail application of the appellant – accused No.1 sought in respect of Crime No.290/2022 of Rural Police Station, Hiriyuru (Special Case No.193/2022) registered for the offences under Sections 376, 366(A), 354(D) r/w Section 34 of the Indian Penal Code (for short hereinafter referred to as ‘IPC’) , Sections 4, 8 and 12 of Protection of Children from Sexual Offences Act, 1989 (for short hereinafter

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NC: 2023:KHC:27747 CRL.A No. 1164 of 2023

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referred to as ‘POCSO Act’ ), Sections 9 and 10 of Prohibition of Child Marriage Act, 2006 and Sections 3(1)(w)(i) & (ii) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short hereinafter referred to as “the SC/ST (POA) Act”), came to be rejected.

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Heard the arguments of learned counsel for the appellant and learned High Court Government Pleader for respondent Nos.1 and 2.

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Respondent No.2 – mother of the victim girl has filed a complaint on 07.09.2022, stating that the appellant – accused No.1 has enticed her daughter – victim girl, aged 17 years, under the guise of loving and marrying her, took her to his native place Yadgir and with the supporters of his native (accused Nos.2 to 5), married the victim girl in a temple and thereafter, committed forcible sexual intercourse on her. A case came to be registered for the offences under Sections 366(A), 376 and 354(D) r/w Section 34 of IPC, Sections 4, 8 and 12 of the POCSO

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NC: 2023:KHC:27747 CRL.A No. 1164 of 2023

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Act, Sections 9 and 10 of the Prohibition of Child Marriage Act.

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The police after completing investigation, filed the charge sheet for the offences under Sections 376, 366(A), 354(D) r/w Section 34 of IPC, Sections 4, 8 and 10 of the POCSO Act and Sections 9 and 10 of the Prohibition of Child Marriage Act and Sections 3(1)(w)(i) & and 3(2)(v) of the SC/ST (POA) Act.

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The appellant – accused No.1 who is in judicial custody has filed a bail petition in Crl.Misc.No.89/2023 and the same came to be rejected by the impugned order which is challenged in this appeal.

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Learned counsel for the appellant would contend that

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the alleged incident has taken place on 26.07.2022 and a complaint came to be filed on 07.09.2022 and there is delay in filing the complaint. In the statement recorded under Section 164 of Cr.P.C, the victim girl did not state the alleged forcible sexual intercourse by the appellant –

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accused No.1 on her. The victim who has been examined as PW1 has stated that she has given her statement before the learned Magistrate as per the instructions of her mother and maternal uncle. He further submits that the photographs marked as Exs.D1 to D8 would reveal that there is a love affair between the appellant – accused No.1 and the victim girl. None of the family members have filed a missing complaint from 26.07.2022 till 07.09.2022. The doctor who examined the victim girl has opined that there is no evidence suggestive of recent sexual act or exposure. As the charge sheet is filed, the appellant – accused No.1 is not required for custodial interrogation. Accused Nos.2 to 5 have already been granted bail by this Court. Without considering all these aspects, the learned Special Judge has passed the impugned order which calls for interference by this Court. With this, he prayed to allow the appeal and grant bail to the appellant – accused No.1.

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Learned High Court Government Pleader would contend that the victim girl is aged 17 years, the appellant

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– accused No.1 enticed her under the pretext of marriage and married her and thereafter, had forcible sexual intercourse on her. The appellant – accused No.1 gave threat to the victim girl. The charge sheet material shows a prima facie case against the appellant – accused No.1 for the offences alleged against him. Considering all these aspects, learned Special Judge has rightly rejected the bail petition of the appellant – accused No.1, which does not call for any interference by this Court. With this, he prayed to dismiss the appeal.

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The victim girl in her statement recorded under Section 164 of Cr.P.C had stated that the appellant – accused No.1 was acquainted with her and he used to follow her when she was going to college. On coming to know the same, the parents of the victim girl discontinued her college education, sent her to Obalapur. The victim also stated that the appellant – accused No.1 came to Obalapur when she was alone in the house and took her to Yadgir and married her on 26.07.2022 and on the same

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NC: 2023:KHC:27747 CRL.A No. 1164 of 2023

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day, in a room, he touched her body and harassed her. There is no allegation of any forcible sexual intercourse by the appellant – accused No.1 on the victim girl in the said statement.

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The victim girl has already been examined as PW1. In her cross examination, she has admitted that in the year 2020-21, her parents came to know that the victim girl and the appellant – accused No.1 were having love affair and therefore, she was sent to Obalapur. The photographs which are marked at Exs.D1 to D8 also support the said aspect that the victim girl and the appellant – accused No.1 were having love affair. The victim girl is aged 17 years and she is of the age of understanding the consequences of her acts. The doctor who examined the victim girl has also opined that there is no evidence suggestive of recent sexual act. The appellant – accused No.1 is in judicial custody since 28.09.2022 and as the charge sheet is filed, he is not required for custodial interrogation. Without considering

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all these aspects, the Special Court has passed the impugned order rejecting the petition which calls for interference by this Court. In the result, the following;

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ORDER

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The appeal is allowed. The order dated 09.02.2023 is set-aside. Crl.Misc.No.89/2023 filed by the appellant – accused No.1 under Section 439 of Cr.P.C stands allowed. The appellant – accused No.1 is ordered to be released on bail in Crime No.290/2022 of Rural Police Station, Hiriyur, subject to the following conditions:

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(i) The appellant – accused No.1 shall execute a personal bond for a sum of Rs.1,00,000/(Rupees one lakh only) with one surety for the likesum to the satisfaction of the jurisdictional Court.

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(ii) The appellant – accused No.1 shall not tamper the prosecution witnesses.

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NC: 2023:KHC:27747 CRL.A No. 1164 of 2023

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(iii) The appellant – accused No.1 shall attend the Court on all dates of hearing unless exempted and co-operate in expediting the trial.

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Sd/JUDGE

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List No.: 1 Sl No.: 20

Ninganna v. the State of Karnataka by

Case brief

What is this about?

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Ninganna v. the State of Karnataka by

Case brief

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