IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE BUDIHAL R.B.
CRL. P. NO. 8801/2017 BETWEEN BHASKAR ACHARYA AGED ABOUT 38 YEARS, S/O GANAPAYYA ACHARYA, R/O DYAS MELMANE, NEAR KAKKUNJE PRIMARY SCHOOL, KAKKUNJE VILLAGE AND POST, UDUPI TALUK AND DISTRICT-576201. ... PETITIONER (BY SRI. H.PAVANA CHANDRA SHETTY, ADV.) AND STATE BY KOTA POLICE STATION KOTA, UDUPI DISTRICT, REP: BY HIGH COURT S.P.P HIGH COURT BUILDING, BANGALORE-01. ... RESPONDENT (BY SRI. CHETAN DESAI, HCGP) THIS CRL.P IS FILED U/S.439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.281/2017 OF KOTA POLICE STATION, UDUPI DISTRICT FOR THE ALLEGED OFFENCE P/U/S 376,506 OF IPC AND UNDER SECTION 3(1)(W) (i)(ii),3(2)(v),3(2)(v-a) OF SCHEDULED CASTES AND SCHEDULE TRIBES (PREVENTION OF ATROCITIES)ACT, 1989.
THIS CRL.P COMING ON FOR ‘ORDERS’, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER This is the petition by the petitioner-accused filed under Section 439 of the Criminal Procedure Code seeking to release him on bail for the alleged offences punishable under Sections 376, 506 of the Indian Penal Code and under Sections 3(1) (w) (i) (ii), 3 (2) (v), 3 (2) (v- a) of S.C & S.T. (POA) Act, 1989 registered in respondent’s police station in Crime No.281/2017.
2. Brief facts of the prosecution case as per the complaint averment that the victim girl is the complainant in this case by name Geetha. In her complaint she has stated that she is residing with her mother and sisters. All are doing coolie work. The complainant studied up to 5th Standard. During the year 2016 the complainant has undertaken construction of house. Therefore, the petitioner Bhaskar Acharya came to complainant’s house for carpenter work, then the complainant developed friendship with the petitioner- accused. During December 2016 at about 3:00 pm the accused committed rape on the complainant in the complainant’s house without her consent and against her will. Subsequently, because of the physical relationship between the complainant and the petitioner, the complainant became pregnant and on 23.09.2017 complainant delivered a female baby at Government hospital. On the background of this facts on 24.09.2017 the respondent police gone to the Government hospital, taken the statement of the complainant in the hospital. On the basis of said complaint, FIR has been registered to the alleged offence and petitioner came to be arrested on 25.09.2017, till today he is in custody.
3. Heard the arguments of the Learned Counsel appearing for the petitioner-accused and also the learned High Court Government Pleader for the respondent-State.
4. Learned Counsel for the petitioner made a submission that the petitioner use to go to the house of the complainant for attending the carpenter work and the complainant as well as the petitioner were having the close acquaintance they were talking together. Learned counsel submitted that if at all the alleged offence took place on 01.12.2016, nothing prevented the complainant immediately to file a complaint making the allegations which is not done in this case and complaint came to be filed only on 24.09.2017. Therefore, there is a delay of nearly nine months in lodging the complaint which is not explained properly by the prosecution. The counsel also made a submission that false case has been booked against the present petitioner. Now the investigation of the case is completed and charge sheet is also filed, he is in custody from the date of his arrest. The charge sheet is also filed and only the DNA report is awaited. Hence, the learned counsel submitted, by imposing reasonable conditions, the petitioner may be enlarged on bail.
5. Per contra, the learned High Court Government Pleader opposed the bail petition contending that looking to the prosecution material so also the allegations in the complaint, it is stated by the victim girl that the present petitioner committed forcible sexual intercourse on her. Regarding delay also the learned High Court Government Pleader submitted that in the complaint itself there is explanation for the said delay. He also made a submission that when the complaint was lodged, she was carrying the pregnancy and now she delivered a female baby and the DNA report is awaited. Hence, he submitted in view of these materials and since the medical records goes to show doctor who examined the victim girl is of the opinion that her mental condition is also affected and that was the reason that the learned JMFC Court also not recorded her statement under Section 161 of the Criminal Procedure Code. Hence, he submitted if the DNA report is received, it will clearly clinches the issue. Hence, he submitted at this stage the petitioner is not entitled to be granted the bail.
6. I have perused the grounds urged in the bail petition, FIR, complaint and also the other material produced in the case. Looking to the complaint averments which is by the victim girl herself, there is a clear allegation that the present petitioner came to her house and he took her forcibly into the room of the house and he made her to lay on a corner of the said room. He himself made the nightie upwards, removing under garments forcibly committed sexual intercourse on her. For her protest for the said act, the petitioner threatened her that in case if she discloses the said fact before anybody, he will commit her murder. She has also mentioned in the complaint specifically because of this reason only, she has not informed about the same to the family members. And when she conceived and when that was also brought to the notice of the petitioner again, he threatened her informing that not to tell anybody. Therefore, looking to the materials at this stage, no doubt as submitted by the learned counsel appearing for the petitioner, there is a delay in lodging the complaint, but for the present there is an explanation offered by the complainant herself in the complaint for the said delay. Ultimately, it is for the trial court whether to accept or not to accept the reason but, prima-facie at this stage some explanation has been offered by the complainant for the said delay. Apart from that as submitted by the learned High Court Government Pleader the victim girl has already delivered a female baby and the DNA report is still awaited. When that is so, at this stage without looking into the DNA report and in view of the materials placed on record, at present I am of the opinion that the petitioner is not entitled to be granted with bail.
Accordingly, petition is rejected. However, liberty is given to the petitioner to move the concerned court after receipt of the DNA report.
Sd/- JUDGE CT-HR Chs*