Dinesha N M @ Dinesh Vs State of Karnataka

DINESHA N.M @ DINESH, S/O MAHADEVAPPA @ DISH MAHADEVA AGED ABOUT 28 YEARS, R/AT: NADABHOGANAHALLI VILLAGE, SHEELANEREHOBLI, K R PET TQ, MANDYA DISTRICT, KARNATAKA - 571 426

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…APPELLANT

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(BY SRI. PUNEETH B.S., ADVOCATE)

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AND:

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STATE OF KARNATAKA

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BY K R PET RURAL P.S. REP., BY SPP, HIGH COURT OF KARNATAKA BANGALORE - 560 001

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Digitally signed by SWAPNA V Location: High Court of Karnataka

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PREMA, W/O REVANNA, AGED ABOUT 35 YEARS, R/AT: NADABHOGANAHALLI VILLAGE, SHEELANEREHOBLI, K R PET TQ, MANDYA DISTRICT, KARNATAKA - 571 426

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…RESPONDENTS

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(BY SMT. RASHMI JADHAV, ADDL. SPP FOR R1

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SRI. CLIFTON D'ROZARIO, ADVOCATE FOR R2)

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THIS CRL.A. IS FILED U/S.14(A)(2) OF SC/ST (POA) ACT, 2015 PRAYING TO SET ASIDE THE ORDER PASSED BY THE HONBLE ADDL. SESSIONS JUDGE, FTSC II MANDYA IN SPL.C.NO.9/2025 (CRIMENO.235/2024) DATED 24.04.2025 AND GRANT THE REGULAR

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HC-KAR

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BAIL IN SPL.C.NO.9/2025 (CRIME NO.235/2024) BY K.R.PET RURAL POLICE FOR THE OFFENCE P/U/S 149, 376(2)(N), 376DA, 376(3) OF IPC AND SEC.10, 4, 6, 5(G), 5(K), 5(L) OF POCSO ACT 2012 ALSO U/S.3(1)(W), 3(2)(V) OF SC/ST (POA) AMENDMENT ACT 2015 WHICH IS PENDING ON THE FILE OF THE HONBLE ADDL. SESSIONS JUDGE, FTSC II MANDYA.

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THIS CRL.A., COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE M G UMA

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ORAL JUDGMENT

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The appellant - accused No.3 is before this Court seeking grant of bail under Section 14A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the SC/ST Act’ for short) in Crime No.23/2025 of K.R.Pet Rural Police Station, pending before the learned Additional Sessions Judge-FTSC-II, Mandya in Spl.Case.No.09/2025 registered for the offences punishable under Sections 149, 376(2)(n), 376DA, 376(3) of Indian Penal Code (for short 'IPC'), Sections 10, 4, 6, 5(G), 5(K), 5(L) of Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act') and Sections 3(1)(W), 3(2)(v) of SC/ST (POA) Amendment Act, 2015, on the basis of the first information lodged by informant-Prema.

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HC-KAR

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Heard Sri. Puneeth.B.S, learned Counsel for the appellant, Smt. Rashmi Jadhav, learned Additional SPP for respondent No.1 and Sri. Clifton D'Rozario, learned counsel for respondent No.2. Perused the materials on record.

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In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:

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“Whether the appellant is entitled for grant of bail under Section 14A(2) of SC/ST (Prevention of Atrocities) Act, 1989?”

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My answer to the above point is in ‘Negative’ for the following:

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R E A S O N S

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It is contented by the learned counsel for the

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appellant that the appellant being accused No.3 was apprehended on 13.12.2024 and since then, he is in judicial custody. It is his contention that, FIR was registered against accused Nos. 1 to 5 and the charge sheet is also filed against them for the above said offences. However, accused Nos. 1, 4 and 5 are already enlarged on bail. When similar allegations are

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HC-KAR

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made against all the five accused, the appellant is also entitled for bail on principles of parity.

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Per contra , it is the contention of the learned counsel for respondent No.2 that, gruesome act was committed by the appellant along with the co-accused on the minor girl aged 14 years, who is from very poor background.

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The materials on record disclose that the offence alleged was committed by the appellant and the co-accused from 01.05.2024 till 30.06.2024. Only when the victim girl became pregnant, her mother got suspicious and took her daughter to the hospital, where it is found that she is pregnant. Later on the basis of the first information, the FIR came to be registered for the above said offences against the accused.

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It is pertinent to note that the informant - mother of the victim, referred to the name of the appellant and the coaccused even while filing the first information. It is also pertinent to note that the statement of the victim girl under Section 183 of BNSS was recorded by the learned Magistrate, where the victim girl specifically refers to the name of the appellant and explains the incident which had occurred.

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HC-KAR

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Prima facie, it appears that the appellant has taken

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advantage of the innocence and helpless condition of the victim girl, as explained in the charge sheet that the victim is slightly mentally retarded. But in the statement recorded by the learned Magistrate, the victim was able to refer to the appellant and the co-accused, and narrate the offence committed by them against her wishes, that too repeatedly. Therefore, the allegations against the appellant and the co-accused are very serious that they have committed gang rape repeatedly on the young girl aged 14 years. The charge sheet has been filed by the Investigating Officer referring to the evidence of several witnesses including CW-4-Nagaraju, who stated that he had seen the appellant taking the victim girl with him about 5 or 6 months earlier and that he had warned him in that regard.

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The materials collected by the Investigating Officer while filing the charge sheet, prima facie disclose the commission of the serious offence against the appellant as alleged, apart from the statement of the victim recorded by the learning Magistrate, immediately after registration of the FIR.

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My attention was drawn by the learned counsel for respondent No.2 to Section 29 of POCSO Act, which raises

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HC-KAR

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presumption regarding commission of offence under Sections 3, 5, 7 and 9 of the Act, unless contrary is proved. A reference is to be made to Section 8 of the SC/ST Act which refers to the personal knowledge of the accused, regarding the victim and her family, which give rise to a presumption that he was aware of her caste, unless the contrary is proved.

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It is contended by the learned counsel for the appellant that as per DNA report the sample collected from the appellant does not match with the samples of the fetus, and it is proved that he is not the biological father and that was the reason why the co-accused were enlarged on bail. But the fact remains that the allegation against the appellant and the coaccused is of committing gang rape over a period of time, taking advantage of helpless condition of the victim girl and her family members.

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As per the medical record, produced by learned counsel for respondent No.2, for perusal of the Court issued by Mandya Institute of Medical Sciences and Teaching Hospital, Mandya, the victim was examined on 11.11.2024 and she was found to be 21 weeks pregnant. Admittedly her pregnancy was aborted after collecting the samples. Merely because, as per

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the DNA report, the appellant is not the biological father of the fetus, it cannot be concluded that the accused has not committed the offence. At this stage, the statement of the victim recorded by the learned Magistrate cannot be ignored, where there is reference to the appellant and commission of the offence by him repeatedly on several occasions.

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Learned counsel for respondent No.2 has placed reliance on the decision of the Hon'ble High Court of Bombay in Vaibhav Bhanudas Ubale v/s State of Maharashtra¹ , where the Court has expressed its opinion at paragraph No.7 to state that, when the allegation against the accused is serious one of committing gang rape and taking advantage of the situation of a poor helpless victim girl, the mere fact that DNA report does not support the paternity is not a ground to release the applicant on bail.

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Regarding the contention taken by the learned counsel for the appellant that accused Nos. 1, 4 and 5 are already enlarged on bail and therefore, the appellant is also entitled for the benefit of parity to release on bail. Learned counsel for respondent No.2 has placed reliance on the decision

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1 2020 SCC Online Bom 835

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HC-KAR

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of the co-ordinate Bench of this Court in Almas Pasha v/s State of Karnataka² , wherein the co-ordinate Bench held in paragraph No.10 that plea of parity as projected is not binding, as individual offences and individual overt acts are to be assessed and not to simply follow orders of other accused who are enlarged on bail. The co-ordinate Bench also referred to the decision of the Hon'ble Apex Court in Neeru Yadav v/s State

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of Uttar Pradesh³ , which elucidated the doctrine of parity while enlarging the accused on bail and thus, concluded in paragraph No.11 as under:-

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" 11. Therefore, merely because other accused are enlarged on bail, the petitioner would not get a right to get himself enlarged on bail. The submission that the petitioner/accused No.2 and accused No.5 are similarly placed is unacceptable as individual overt act by the petitioner has a chilling effect on any petitioner considered for enlargement on bail. A persuasive parity would not mean that the petitioner would also be enlarged on bail."

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Learned counsel for respondent No.2 further submitted that the statement of the victim girl recorded by the

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2 2023 SCC Online Kar 166

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3 (2016) 15 SCC 422

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HC-KAR

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learned Magistrate under Section 183 of BNSS was never brought to the notice of the co-ordinate Bench of this Court when accused No.1 was enlarged on bail. On going through the order passed by the co-ordinate Bench enlarging accused No.1 on bail, I find considerable force in the contention taken by the learned counsel for respondent No.2 as there is no reference to such a statement of the victim girl recorded by the learned Magistrate.

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Considering all these facts and circumstances and looking to the nature and seriousness of the offence, age and condition of the victim and her family members, I am of the opinion that enlarging the appellant on bail is not advisable. Therefore, he is not entitled for grant of bail.

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Accordingly, I answer the above point in the Negative and proceed to pass the following:

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ORDER

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The appeal is dismissed.

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Sd/(M G UMA) JUDGE

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SPV: List No.: 1 Sl No.: 31

Dinesha N M @ Dinesh v. State of Karnataka

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Dinesha N M @ Dinesh v. State of Karnataka

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