Remanded

Ramesh S/O Basappa Baraker v. State of Karnataka

Karnataka HC19 Nov 2024CRL.RP/100250/2024

Case brief

AI extract

What is this about?

Accused challenged rejection of his discharge application in a rape and assault case. The High Court found the trial court's order unreasoned and remanded the discharge application for fresh consideration on the prosecution material.

What did the court decide?

Impugned order dated 18.05.2024 set aside; matter remanded to trial court to reconsider discharge application afresh in accordance with law.

Ramesh S/O Basappa Baraker Vs State of Karnataka — Quashing and FIR | Karnataka HC (2024)

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NC: 2024:KHC-D:16853 CRL.RP No. 100250 of 2024

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 19^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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CRIMINAL REVISION PETITION NO.100250 OF 2024 (397 OF CR.P.C./438 OF BNSS.)

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BETWEEN:

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RAMESH S/O. BASAPPA BARAKER, AGE: 21 YEARS, OCC: LABOURER, R/O. SANTEPETE NAGALUR, TQ: AND DIST: HAVERI-581213.

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…PETITIONER

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(BY SRI ARAVIND D. KULKARNI, ADVOCATE.)

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AND:

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MALLIKARJUN RUDRAYYA KALMATH

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Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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STATE OF KARNATAKA, THROUGH POLICE INSPECTOR, HAVERI WOMEN PS, REP. BY SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH-580011.

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SMT. RATNAVVA W/O. KOTEPPA KOPPAD, AGE: 50 YEARS, OCC: HOUSEHOLD, R/O. NEGALUR, TQ: AND DIST: HAVERI-581213.

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…RESPONDENTS

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(BY SRI JAIRAM SIDDI, HCGP FOR R1;

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SRI SUBHASH J. BADDI, ADVOCATE FOR R2.)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 OF CR.P.C. SEEKING TO QUASH THE ORDER DATED 18.05.2024 PASSED BY ADDL. DISTRICT AND SESSIONS JUDGE, FTSC-I, HAVERI, WHEREBY REJECTED THE DISCHARGE APPLICATION FILED IN SC NO.72/2023 REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTION 323, 307, 376 AND 506 OF IPC AGAINST THE PETITIONER/ACCUSED

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NC: 2024:KHC-D:16853 CRL.RP No. 100250 of 2024

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CONSEQUENTLY ALLOW THE SAID IA DISCHARGE THE ACCUSED/ PETITIONER HEREIN AND ETC.,.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR)

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Heard the learned counsel for the petitioner,

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learned HCGP for respondent No.1 and the learned counsel Sri.Subhash J Baddi for respondent No.2.

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This petition is filed questioning the impugned order passed by the Addl.District and Sessions Judge, FTSC-I Haveri, whereby the learned Sessions Judge rejected the application for discharge of the petitioner/accused in S.C.No.72/2023 registered for the offences punishable under Sections 323, 307, 376 & 506 of IPC.

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3. The brief facts of the case are that, according to the prosecution one Ratnavva W/o.Koteppa Koppad, aged about 50 years, was residing in Negalur plot of Havari taluk and district along with her husband Koteppa and younger son Vasant. It is the case of the prosecution that children

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were residing at Bangalore. The complainant had gone to grace her buffaloes on 05.06.2023 at 05.00 p.m. At that point of time one Mr.Ramesh Basappa Baraker, the petitioner/accused the resident of Negalur village, upon seeing the complainant grazing the buffaloes, came near her, stood in front of her and pulled her and started touching her cheeks and insisted to have sex with him. Dragged the complainant to a nearby bush where the complainant fell down and tried to cover the mouth of the complainant by a towel. At that point of time complainant shouted loudly to get rid of the hands of the accused. At that point of time the accused sitting on thighs of the complainant pressed the neck of the complainant, warned her that if she continues to scream, then he would kill her.

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4. It is the further case of prosecution that thereafter the accused had forcible sexual intercourse with the complainant, due to which the complainant started screaming of pain and at about 05.30 pm one Neelamma W/o.Ningappa Sappin, who is the wife of complainant’s brother, heard the voice of the complainant, rushed toward

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the spot and by observing the arrival of the said Smt.Neelamma, accused took his clothes and fled away from the scene of offence. Thereafter, said Neelamma came to the complainant, helped her to recover and along with the buffaloes she reached her home. After the husband of the complainant returned home, they explained the entire incident that took place near the grazing yard. The husband of the complainant took the complainant to the nearby Guttal Government Hospital for treatment, who advised her to be taken to Haveri District Hospital where she was admitted and the police came and recorded her statement. Thereafter a complaint came to be filed by the complainant against the accused for the offences stated hereinabove.

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5. Based on the said complaint, the respondent Police registered FIR in Crime No.40/2023 on 06.06.2023 at about 03.00 p.m. for the offences stated hereinabove. Thereafter charge sheet came to be filed which was submitted to the Principal Civil Judge, Haveri and thereafter it was transmitted to the Principal District and Sessions Court, Haveri, by way of a committal order. The

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petitioner/accused filed an application under section 227 read with section 239 of Cr.P.C. for discharge by raising several grounds. The said application was objected by the prosecution by filing statement of objections. Upon hearing the learned counsel for both the petitioner as well as respondent, the trial Court rejected the application by order dated 18.05.2024. The petitioner being aggrieved by the application for discharge being dismissed is before this Court challenging the same.

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6. It is the contention of the learned counsel for the petitioner that the impugned order is arbitrary, illegal and perverse. The trial Court has not taken into consideration the relevant materials and facts placed before it while considering the application for discharge. It is further contented that initiation of proceedings itself is illegal and not sustainable in law. A false and a frivolous complaint has been lodged only to harass the petitioner/accused. He further contends that the jurisdictional police have registered a case invoking the provisions under sections 323, 307, 376, 506 of IPC without application of mind and without

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conducting proper investigation and going through the materials placed from the medical records. Therefore, he contends that there is no case made out by the prosecution and accordingly the petitioner, based on the material submitted by the prosecution itself, ought to have been discharged for the aforesaid offence.

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7. It is also contended by learned counsel for the petitioner that the trial Court while dealing with the application for discharge has not appreciated the material placed on record, including the FSL report and the medical reports which run contrary to the stand taken by the prosecution. Therefore without application of mind and without giving a proper finding and reasoning, the trial Court has mechanically rejected the application on the ground that the forcible sexual intercourse has already taken place amounting to rape.

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8. Learned counsel for the petitioner contends that at the time of either framing charge or dealing with application for discharge, it is the duty of the trial Court to see prima facie whether the case is made out and to be

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NC: 2024:KHC-D:16853 CRL.RP No. 100250 of 2024

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satisfied with regard to the probability of the accused having committed the offence, the proof of culpability and material that are placed before the Court whether could be believed to implicate the accused and subject him for trial.

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9. In the present case on hand, it is submitted that the materials which are relied by the prosecution have not been considered by the trial Court while coming to a conclusion that the offence has been committed when the material placed are contrary to such conclusion. All these aspects have not been dealt with and considered by a reasoned order by the trial Court except stating that the recorded statements of victim and other witnesses clearly disclose that accused had forcible sex with the victim and thus raped her. Further it is said, the other allegations made discloses that accused has committed other offences alleged. Therefore, he contends that the submissions and contentions put forth by the learned counsel for the petitioner/accused has not been considered and no finding or reasoning has been provided by the trial Court for rejecting the application of the petitioner.

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10. On these grounds learned counsel contends that the impugned order is liable to be set aside and the petitioner requires to be discharged. He relies on a judgment of the Hon’ble Apex Court in the case of Sanjay Kumar Rai vs. the State of Uttar Pradesh, reported in AIR 2021 SC 2351, relying on paragraphs No.16 and 18 of the said judgment.

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11. Per contra, learned HCGP representing the State vehemently contends that upon reading the complaint, lodged by the complainant on the very next day of the offence having been committed, it is apparently clear that forcible sex had taken place, by the accused against the victim who has raped her and based on the statement of the eyewitnesses who are present, the accused has been implicated and pursuant to investigation, charge sheet has been filed so also other offences of assault has taken place, which are apparently evident from the eyewitnesses statement. Therefore, the trial Court is right in rejecting the application and he sustains the order passed by the trial Court.

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12. On a careful perusal of the impugned order and on hearing the submissions of learned counsel for the petitioner and respondent, it is apparently seen that while considering an application for seeking discharge, it is no more res integra that the trial Court should look into the material placed by the prosecution and be satisfied whether the material placed and the case made out by the prosecution would entail the petitioner to undergo trial and if the petitioner is able to make out a valid case for the prosecution having not produced enough and sufficient material prima facie to clinch the issue, the Court is empowered with the discretion on the basis of the material to discharge the accused for want of proper evidence and material and statements before the Court. It is also necessary for the trial Court to see that on the basis of material placed before the trial Court, if the case would not end in a conviction, it would be open to the trial Court to discharge the accused without holding any further trial, which would be a futile exercise. Under the circumstances, the powers are vested with the learned Sessions Judge to go

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through the material placed on record by the prosecution, the complaint, the statement of eyewitnesses and take a conscious decision on the material available to come to a conclusion that the case would lead to a conviction or there is a prima facie case made out to make the accused stand for trial, but not merely on basis of surmises and conjectures that the accused should be made to go through the process of trial.

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13. In the present case on hand, on going through the impugned order, except for the reasoning given at paragraph No.13 by the learned Sessions judge, which says that the recorded statements of victim and other witnesses clearly disclose that accused had forcible sex with the victim and thus raped her, there is nothing much material placed or reasoning provided to reject the application. It is also relevant to see that the learned Sessions judge has not taken into consideration the other offences invoked by the prosecution to come to a conclusion as to why the accused should stand trial. The Hon’ble Apex Court in the case of Sanjay Kumar Rai stated here in supra, has clearly held

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that the trial Court while dealing with an application for discharge, is not to act as a mere post office. It has to sift through the evidence in order to find out whether there are sufficient grounds to try suspect as held at paragraph No.16 of the said judgment. Paragraphs No.16 and 18 of the said judgment are extracted hereinbelow.

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“16. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [Union of India v. Prafulla Kumar Samal]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be.

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17. xxxx…xxx…xxx….

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18. The High Court has committed jurisdictional error by not entertaining the revision petition on merits and overlooking the fact that ‘discharge’ is a valuable right provided to the accused. In line with the fact that the High Court and the court below have not examined the fairness of criminal investigation in this 5 (1979) 3 SCC 4 case and other related aspects concerning improvement of witness statements, it is necessary for the High Court to reconsider the entire matter and decide the revision petition afresh. Accordingly, we set aside the impugned order dated 28.11.2018 and remand the case

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NC: 2024:KHC-D:16853 CRL.RP No. 100250 of 2024

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back to the High Court for its reconsideration in accordance with law.”

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14. Taking into consideration the submission made by

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the learned counsel for the petitioner and the respondents and the material on record and the impugned order, it appears that the trial Court has not appreciated the material and given proper finding and reasoning with regard to rejection of the application. Therefore, it would be appropriate for this court to remand the matter back to the trial Court to consider all the submissions and contentions put forth by the learned counsel for the petitioner/accused, take into consideration the relevant material placed on record and thereafter pass a considered order by providing proper reasoning. Under the circumstances, I pass the following:

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ORDER

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i) The petition is disposed of.

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ii) The impugned order dated 18.05.2024 passed by Additional District and Sessions Judge, FTSC-I, Haveri, in S.C.No.72/2023, at Annexure-F is hereby set aside.

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iii) Matter is remanded to the trial Court to consider

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the application filed for discharge of the accused afresh by taking into consideration all the material placed by the prosecution and pass suitable orders in accordance with law.

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iv) It is needless to mention that the trial Court need not be influenced by the order passed by this Court as no opinion is expressed by this Court on the merits of the matter, so also with regard to the application for discharge.

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v) Ordered accordingly.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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KGK, MRK CT-MCK

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List No.: 2 Sl No.: 8

Ramesh S/O Basappa Baraker v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Ramesh S/O Basappa Baraker v. State of Karnataka

Case brief

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