Allowed

Dyamappa G @ Akash v. the State of Karnataka

Karnataka HC18 Aug 2023CRL.A/871/2023

Case brief

AI extract

What is this about?

Appeal against rejection of bail in offences under SC/ST (Prevention of Atrocities) Act and POCSO. Court set aside the lower court order due to love-affair context and marriage, granting bail with conditions.

What did the court decide?

Bail granted in Crime No.1/2023 under conditions of personal bond, prohibition on threatening victim/witnesses, and regular appearance in court.

Dyamappa G @ Akash Vs the State of Karnataka — Caste Atrocities | Karnataka HC (2023)

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- 1 - NC: 2023:KHC:29291 CRL.A No. 871 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO. 871 OF 2023

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BETWEEN:

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DYAMAPPA G @ AKASH, S/O LATE HANUMANTHAPPA, AGED ABOUT 20 YEARS, RESIDING AT: HOLAGUNDI VILLAGE, HOOVENA HADAGALI TALUK, VIJANAGAR DISTRICT - 583 217.

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…APPELLANT

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(BY SRI. CHANDAN B.V., ADVOCATE FOR

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SRI. B. SIDDESWARA, 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 DEVANAHALLI POLICE STATION BANGALORE, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT COMPLEX, BANGALORE - 560 001.

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SMT. KAVYA G.P., AGED ABOUT 28 YEARS, OFFICER, LTO DISTRICT, CHID PROTECTION UNIT, DC OFFICE, BENGALURU, KARNATAKA - 562 110.

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…RESPONDENTS

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(BY SRI. M. DIVAKAR MADDUR, HCGP FOR R1; R2 SERVED AND UNREPRESENTED)

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NC: 2023:KHC:29291 CRL.A No. 871 of 2023

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THIS CRL.A. IS FILED UNDER SECTION 14(A) (2) OF SC/ST (POA) ACT, 2015 PRAYING TO SET ASIDE THE ORDER DATED 29.04.2023 OF CRL.MISC.NO.721/2023 OF ADDL. DISTRICT AND SESSIONS JUDGE, FTSC-III, BANGALORE RURAL DISTRICT, BANGALORE ENLARGE THE APPELLANT ON BAIL IN CR.NO.1/2023 IN SPL.C.C.NO.2025/2022 ON BAIL IN THE SPL.C.C.NO.521/2023 OF DEVANAHALLI POLICE STATION FOR THE OFFENCE P/U/S.376(2)(n) OF IPC SEC.4,6 OF POCSO ACT 2012 AND SEC.3(1)(w),3(2)(v),(V-A) OF SC/ST (POA) ACT SEC.9 OF CHILD MARRIAGE ACT WHICH IS NOW PENDING BEFORE THE LEARNED FTSC III HONBLE COURT.

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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 accused praying to set aside the order dated 29.04.2023 passed in Criminal Miscellaneous No.721/2023 by the Addl. District and Sessions Judge, FTSCIII, Bangalore Rural District, Bangalore, where under the bail petition filed by the appellant/accused No.1 sought in respect of Crime No.1/2023 of Devanahalli Police Station registered for the offence punishable under Section 376(2)(n) of Indian Penal Code, Sections 4 and 6 of Protection of Children from of Sexual Offences Act, 2012 and Section 3(1)(r), 3(1)(s) 3(1)(w),

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3 - NC: 2023:KHC:29291 CRL.A No. 871 of 2023

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3(2)(v), 3(2)(v-a) of Scheduled Caste and Schedule Tribe of (Prevention of Atrocities) Act, 1989 came to be rejected.

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Heard learned counsel for the appellant and learned High Court Government Pleader for respondent No.1/State. In spite of service of notice to respondent No.2/Complaiant she remained absent and has been unrepresented.

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It is the case of the prosecution that, the victim girl, aged about 16 years, and when she was studying 10th standard, came in contact with the appellant/accused and later they became lovers. Subsequently, on 18.03.2021 the appellant/accused married the victim with the consent of her family members. Thereafter, the appellant/accused, who had been in the habit of drinking alcohol, after consuming, used to assault the victim girl under intoxication and he used to harass her physically and mentally and therefore, once the victim had consumed the poison. Thereafter, victim went to her sister's house and later, her sister called the child helpline and thereafter, a complaint came to be lodged. After investigation, charge sheet came to be filed for the above said offences including the offence under Section 9 of the Child Marriage Act.

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NC: 2023:KHC:29291 CRL.A No. 871 of 2023

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The appellant/accused came to be arrested on 08.01.2023 and he is in judicial custody. The appellant/accused filed Criminal Miscellaneous No. 721/2023 seeking bail and the same came to be rejected by order dated 29.04.2023 which is challenged in this appeal.

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The learned counsel for the appellant would contend that there was a love affair between the appellant and victim girl and the appellant married the victim girl with the consent of her family members on 18.03.2021. The statement of victim girl has been recorded under Section 164 of Cr.P.C wherein there is no allegation of any forcible sexual intercourse made by this appellant/accused. The victim girl was of the age of understanding the consequences of her acts. Without considering these aspects, the learned Special Judge has passed the impugned order which requires interference by this Court. With this, he prayed to allow the appeal and grant bail to the appellant/accused.

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Per contra, learned High Court Government Pleader

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would contend that the victim was aged about 16 years and when she was in 10th standard, she came in contact with the

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5 - NC: 2023:KHC:29291 CRL.A No. 871 of 2023

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appellant/accused. The victim girl was belonging to a Scheduled Caste and appellant/accused was belonging to Upper Caste. The appellant/accused instigated the victim girl to love him and during her minority, appellant/accused married her and had sexual intercourse with her. Appellant/accused used to come home under intoxication and used to assault the victim girl. Therefore, victim girl went her sister's house and thereafter, filed a complaint. The doctor who examined victim girl has opined that her hymen is not intact. These charge sheet materials show prima facie case against the appellant/accused for the offence alleged against him. Considering all these aspects, the learned Special Court has rightly rejected the bail petition of the appellant/accused. With these aspects, he prayed to dismiss the appeal.

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As per the prosecution case, the date of birth of victim girl is 18.02.2006. The statement of victim girl recorded under Section 164 of Cr.P.C. reveals that she was in love with this appellant/accused. The appellant/accused married her on 18.03.2021 in a temple and thereafter, victim girl went to the house of appellant/accused and stayed there for one and half months and thereafter, she came and resided in the house of

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6 - NC: 2023:KHC:29291 CRL.A No. 871 of 2023

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her grandmother. There is no allegation of any forcible sexual intercourse by the appellant/accused on the victim girl as per the said statement recorded under Section 164 of Cr.P.C. The victim girl is of the age of understanding the consequence of her acts. As charge sheet is filed the appellant/accused is not required for custodial interrogation, the apprehension of the prosecution is that, if the appellant is granted bail, there are chances of threatening the complainant-victim girl and other prosecution witnesses. The said apprehension can be met with by imposing stringent conditions. Without considering all these aspects, the learned Special Court has erred in rejecting the bail petition of the appellant/accused. In the result the following;

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ORDER

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The appeal is allowed.

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The order dated 29.04.2023 passed in Criminal

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Miscellaneous No. 721/2023 by the Additional District and Session Judge, FTSC-III, Bangalore Rural District Bangalore is set aside. The bail petition filed by the appellant/accused stands allowed and the appellant/accused is ordered to be released on bail in

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NC: 2023:KHC:29291 CRL.A No. 871 of 2023

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Crime No.1/2023 of Devanahalli Police Station, subject to the following conditions;

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a. The appellant-accused 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 Trial Court;

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b. The appellant-accused shall not threaten the complainant or tamper other prosecution witnesses.

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c. The appellant-accused shall appear before the trial Court on all dates of hearing unless exempted and cooperate for speedy disposal of the case.

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Sd/JUDGE

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DSP List No.: 1 Sl No.: 5 CT:SNN

Dyamappa G @ Akash v. the State of Karnataka

Case brief

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Dyamappa G @ Akash v. the State of Karnataka

Case brief

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