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Yashwanth @ Yashavant v/s The State of Karnataka, Rep. by Addl. State Public Prosecutor, Dharwad


Company & Directors' Information:- REP CORPORATION PRIVATE LIMITED [Strike Off] CIN = U26921TN2005PTC055138

Company & Directors' Information:- G E CO PUBLIC LIMITED [Strike Off] CIN = U36900WB1951PLC021802

Company & Directors' Information:- PUBLIC COMPANY LIMITED [Dissolved] CIN = U74900KL1948PLC000930

    Criminal Petition No. 101095 of 2020

    Decided On, 29 September 2020

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

    For the Petitioner: A.R. Patil, Advocate. For the Respondent: Seema Shiva Naik, HCGP.



Judgment Text

(Prayer: This Criminal Petition is filed U/Sec.439 of Cr.P.C., praying to enlarge the Petitioner on Bail who has been arrayed as an accused , in Sirsi Rural P.S.Cri.No.74/ 2020, in Special Case No.97/ 2020 Pending before Addl. District and Sessions Judge-FTSC-1, U.K. Karwar (special Court for Trial of Cases filed Under POCSO Act, for the offence punishable Under Sections 363, 376 of IPC and R/W Under Section 4, 8 of POCSO Act.)1. This petition is filed by the accused under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.74/2020 of Sirsi Rural Police Station (Spl.Case No.97/2020 pending on the file of the learned Additional District and Sessions Judge, FTSC-I, U.K., Karwar), registered for the offences punishable under Sections 363 and 376 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act', for brevity).2. It is the case of the prosecution that the victim has filed a complaint alleging that her date of birth is 03.04.2004 and she is studying is 10th standard at Sri. Marikamba High School, Sirsi, and due to Corona, annual examinations are not conducted in time and hence she is studying at home. It is further alleged that the petitioner is acquainted with her since 4 to 5 months and on 04.06.2020 when herself, her mother, grandmother were sleeping in their house, at about 2.30am, the petitioner came in his car and took her away in white colour car KA-36.N.2648 to his house and committed sexual assault during night hours. A complaint has been filed on 04.06.2020 at 12.30 pm and it came to be registered for the offences punishable under Sections 363 and 376 of IPC and Sections 4 and 8 of POCSO Act. The police arrested the petitioner on 04.06.2020. The bail application filed by the petitioner in Spl.Case No.97/2020 came to be rejected by order dated 24.08.2020. Therefore, the petitioner is before this Court seeking bail.3. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State.4. It is the contention of the learned counsel for the petitioner that the incident has taken place at 3.30 am in the house of the petitioner/accused and the complaint came to be filed on 04.06.2020 at 12.30 pm and there is a delay in filing the complaint. It is his further submission that the petitioner is a Councillor and he is a social worker and he performed the marriage of Laxmi, elder sister of the victim, with the boy by name Sharath with whom she had a love affair and therefore to take revenge, a false case came to be filed. It is his further submission that the petitioner is a Councillor and to damage his political career, a false complaint came to be filed. It is his further submission that the medical examination report of the victim reveals no external injuries. It is his further submission that the petitioner is having wife, children and parents. It is his further submission, that charge sheet has been filed and the petitioner is not required for any custodial interrogation. With this, he prayed for allowing the petition.5. Per contra, learned High Court Government Pleader contended that the victim is aged 16 years and in her statement recorded under Section 164 Cr.P.C. and in the complaint, she has specifically stated regarding the sexual assault made by the petitioner/accused on her. It is her further submission that the medical examination report reveals that hymen is absent. It is her further submission that the petitioner is a Councilor and an influential person and if he is granted bail, he will tamper the prosecution witnesses and flee from justice. It is her further submission that charge sheet material prima facie establish a case against the petitioner for the offences alleged against him. With this, she prayed to dismiss the petition.6. Having regard to the submission made by the learned counsel for the petitioner and the learned High Court Government Pleader, this Court has gone through the charge sheet records and the documents produced by the petitioner/accused.7. The documents produced by the petitioner show that he is an elected Councillor and he is a social worker. The petitioner performed the marriage of elder sister of the victim girl with one Sharath as they were loving each other as their family members had opposed their marriage. The said marriage was performed on 04.05.2020 at Shri Mastamma Temple at Karegundi, Sirsi. Therefore, the victim and her parents are not happy with the marriage and they are angry with the petitioner. In the complaint, it is alleged that the petitioner forcibly took the victim from her house on 04.06.2020 at about 2.30 am in his car KA.36.N.2648 to his house and forcibly had sexual intercourse with the victim at about 3.30 am. On looking to the medical certificate of the victim, there are no injuries over her body. Even though the hymen is absent, there are no injuries on labia majora and labia minora. In the medical certificate, the Doctor has opined that the victim is "used to an act like that of sexual intercourse and no evidence of sexual violence seen". Therefore, at this stage, it cannot be said that there is forcible sexual intercourse by the petitioner on the victim. It appears that there is force in the contention of the learned counsel for the petitioner that the victim and her family members are reckoning vengeance against the petitioner, as he had performed the marriage of the elder sister of the victim with Sharat with whom the elder sister of the victim had a love affair. The petitioner is a Councillor and his presence could be secured easily.8. It is well settled that matters to be considered in an application for bail are:"(i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;(ii) nature and gravity of the charge;(iii) severity of the punishment in the event of conviction;(iv) danger of the accused absconding or fleeing, if released on bail;(v) character, behaviour, means, position and standing of the accused;(vi) likelihood of the offence being repeated;(vii) reasonable apprehension of the witnesses being tampered with; and(viii) danger, of course, of justice being thwarted by grant of bail. While a vague allegation that the accused may tamper with the evidence or witnesses, may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused."9. In a decision reported in (2018) 3 SCC 22 in the case of Dataram Singh v. State of Uttara Pradesh and Another, the Hon'ble Apex Court held as under:"A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society."10. In the present case, investigation is completed and charge sheet has been filed. No grounds have been made out by the prosecution to show that the custodial interrogation of the petitioner is necessary. There are no criminal antecedents of the petitioner. The petitioner is the resident of the address shown in the cause title and the same is not disputed. The main objection of the prosecution is that in the event of granting bail, the petitioner is likely to cause threat to the complainant and other prosecution witnesses. The said objection may be set right by imposing stringent conditions.11. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for granting b

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ail subject to certain terms and conditions. Hence, I proceed to pass the following:ORDERThe petition filed under Section 439 of Cr.P.C. is allowed. Consequently, the petitioner shall be released on bail in Crime No.74/2020 of Sirsi Rural Police Station (Spl.Case No.97/2020 pending on the file of the learned Additional District and Sessions Judge, FTSC-I, U.K., Karwar) subject to the following conditions:i) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with one surety for the like sum to the satisfaction of the jurisdictional Court. Due to COVID-19, the petitioner is permitted to furnish surety within two months. If circumstances arise, the jurisdictional Court is permitted to extend the period for furnishing surety.ii) The petitioner shall not indulge in tampering the prosecution witnesses.iii) The petitioner shall attend the Court regularly and co-operate in speedy disposal of the case.
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