IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.9488/2018 BETWEEN:
Adithya Salyn @ Adithya @ Adi S/o. Chandrashekar Salyan Aged about 22 years Fisherman Residing at Manohar Nivas Sandspit Bengre Mangalore-575 013. ...Petitioner (By Sri K. Shashikanth Prasad, Advocate) AND:
State Represented by The State Public Prosecutor High Court of Karnataka Bangalore-560 001. ...Respondent (By Smt. Namitha Mahesh B.G., HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.60/2018 of Mangalore Women Police Station, Mangalore City for the offences punishable under Sections 376D, 323, 354 and 506 of IPC and Section 3(2)(v) (va) of SC/ST (POA) Act.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R This petition has been filed by the petitioner under Section 439 of Cr.P.C. praying this Court to release him on bail in Crime No.60/2018 of Mangalore Women Police Station for the offences punishable under Sections 376D, 323, 354 and 506 of IPC and Section 3(2)(v) (va) of SC/ST (POA) Act.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.
3. The gist of the case of the prosecution is that the victim studied in Government Primary School, Neerpade and working in a factory at Krishna Tiles, Kalladka. At that time, she met one Surjith Kumar and they became close. Thereafter, she left the job and was working as a maid servant. It is further alleged that on 17.11.2018 the said Surjith Kumar called over the phone and asked her to come to beach and accordingly, on 18.11.2018 she came by bus and at about 8.00 a.m. the said Surjith Kumar and victim went to Mangalore State Bank bus band. Thereafter, they went by walk and reached Dhakke and from there they traveled in a boat and went to Thota Bengre beach at 11.00 a.m. After roaming around, they sat in one place. At that time at about 12.30 p.m., seven persons came there and asked them why they have come and they told that they have came to roam and one person who is fat told that they have come to sexual act and thereafter other two persons caught hold of Surjith Kumar and assaulted him and dragged him from that place. Remaining five persons have caught hold her hand and thereafter all the accused persons sexually assaulted her one after another. It is further alleged that thereafter she got up and wore her dress, went to the home and informed to her sister’s husband and again on the same day, one more phone call was received and told that they have met her in beach and asked her whether she is coming tomorrow or not and they also threatened her that they are going to take away life of Surjith Kumar who is her friend. As such, she did not filed complaint and thereafter complaint has been lodged and on the basis of the complaint a case has been registered.
4. Though notice served to the victim, she has remained absent.
5. It is the submission of the learned counsel for the petitioner/accused that there is delay of 8 days in filing the complaint. The alleged incident took place on 18.11.2018 and complaint was registered on 26.11.2018 and no explanation has been given for the said delay. He further submitted that when the complaint was given, it has been registered against unknown persons and no names have been mentioned. He further submits that test identification parade said to have been done. Therein, the dress material which has been given is also not tallied with test identification parade. He further submitted that till today FSL report has not been produced, which is vital document in order to prove that there was sexual assault occurred or not. He further submitted that petitioner/accused is working as a fisherman and he is innocent. Further, petitioner/accused is having a meager earning with which he has to maintain his family members. He further submitted that the petitioner/accused is ready to abide by any conditions imposed by this Court and ready to offer surety. On these grounds, he prays to allow the petition.
6. Per contra, learned High Court Government Pleader vehemently argued and submitted that the petitioner herein along with other accused persons have repeatedly gang raped the victim and even the medical records corroborated with the statement of the victim as well as her friend Surjith Kumar. Even the victim and Surjith Kumar have identified the petitioner/accused in the test identification parade. She further submitted that even in statement 164 of Cr.P.C, the victim categorically stated the overt acts each of the accused persons. She further submits that the medical records clearly go to show that she has been sexually assaulted by the accused persons. She further submits that only because of the threat given to her, complaint was belatedly filed. Mere delay in filing the complaint is not going to take away the case of the prosecution. She further submits that there is threat to the life of the victim, if petitioner/accused is released on bail. She further submits that FSL report is kept pending. At any time, it may be secured and same may be produced along with charge sheet. On these grounds, she prays to dismiss the petition.
7. I have carefully and cautiously gone through the contents of the complaint and other materials, which has been produced in this behalf.
8. A close reading of the contents of the complaint and other materials clearly goes to show that all the accused persons against the will of the victim have sexually assaulted and have gang raped her. Even in the test identification parade, both the victim as well as Surjith Kumar have identified the petitioner/accused. Even the medical records also corroborate to the effect that she has been sexually assaulted. The petitioner/accused has involved in a serious offence of gang rape. On the other hand, non- production of FSL report will not come to the aid of the petitioner herein so as to release him on bail. Even other materials point out towards the guilt of the petitioner/accused. Hence, I feel that no case has been made out to release the petitioner/accused on bail.
Accordingly, petition is dismissed.
nms Sd/- JUDGE