IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.1058/2019 BETWEEN:
FIROZE AHAMED S/O SHAKEEL AHMED AGED ABOUT 38 YEARS R/O NO.87, 1ST CROSS MYSORE ROAD, ROSHAN NAGAR BANGALORE – 560 026 NATIVE PLACE:NO.6 MAIN BAZAAR, GADAMUKHESHWAR CHOWDARA, DELHI.
... PETITIONER (BY SRI. SUHAIB FAZEEL AHMED MADAR., ADVOCATE) AND:
1. STATE OF KARNATAKA BY RAMAMURTHY NAGAR POLICE STATION, REP BY HCGP HIGH COURT OF KARNATAKA BANGALORE - 560 001.
2. NASEEMA BEGUM D/O ABDULLA AGED ABOUT 18 YEARS NO.6, MADANAYAKANAHALLI LAXMIPURA BANGALORE – 562 123.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH ENTIRE PROCEEDINGS, FIR AND CHARGE SHEET IN SPL.C.NO.768/2018 PENDING ON THE FILE OF LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU FILED BY THE RAMAMURTHY NAGAR POLICE IN CR.NO.541/2017 FOR THE ALLEGED OFFENCE P/U/S 376, 354, 506, 504 OF IPC AND SECTION 3 AND 4 OF POCSO ACT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri. Suhaib Fazeel Madar, learned Advocate appearing for petitioner and Sri S Rachaiah, learned HCGP appearing for respondent. Perused the records.
2. Petitioner who is facing prosecution for the offences punishable under Sections 376, 354, 506, 504 read with Section 34 IPC and Sections 3 & 4 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’ ) is before this Court for quashing of said proceedings.
3. Gist of the prosecution case is that accused came in contact with the complainant about five years prior to filing of the complaint when she was visiting his shop (electrical material shop) at Ramamurthynagar and he had insisted the complainant to call him by giving his visiting card and when she had called him, taking advantage of the absence of customers in the shop, he had asked her to visit his shop and after taking her to the godown, committed forcible sexual intercourse with her. It is also alleged that he continued to have sexual intercourse under the guise of marrying her and when she conceived, he had given her certain tablets to abort the child. When the complainant insisted that accused has to marry her, accused is said to have started postponing the same on the ground that complainant is still a minor and when she continued with her demand, accused assured her of getting married and postponed the same on one pretext or the other and continued to have sexual intercourse under the threat of uploading her images which he claims to have captured in his mobile and has threatened her that he would spoil her name in the society and as such she will not be able to get married to anyone else. Hence, victim girl alleged that she succumbed to the pressures of the accused and without any option, had sexual intercourse with the accused. It is further alleged by her that since accused refused to marry her and also threatened to murder her in the event she made known these incidents to others, she lodged a complaint which came to be registered by the jurisdictional police in Crime No.541/2017 for the aforesaid offences. For quashing of said proceedings, petitioner – accused is before this Court.
4. It is the contention of Sri Suhaib Fazeel Madar, learned Advocate appearing for petitioner that medical certificate issued by the Bangalore Medical College and Research Institute does not disclose of any forcible sexual intercourse and same being consensual sex between parties, Section 376 of IPC would not be attracted. He would also contended that report of the Medical college dated 15.12.2017 disclose that victim girl was aged 21 years and therefore Sections 3 and 4 of POCSO Act is not attracted and as such, continuation of proceedings against petitioner is onerous, abuse of process of law and liable to be quashed. In support of his submission, he has relied upon judgment of Hon’ble Apex Court in JAYA MALA vs HOME SECRETARY, GOVERNMENT OF J & K AND OTHERS reported in AIR 1982 SC 1297.
5. Per contra, Sri Rachaiah, learned HCGP would support the case of the prosecution and prays for dismissal of the petition.
6. Though on the issue of delay, learned Advocate appearing for petitioner would also contend that after five years of alleged rape, complainant– victim has lodged a complaint and therefore, it cannot be gain said by the accused that on the occurrence of the first incident of alleged rape, victim was required to lodge a complaint.
7. In the facts obtained in the present case, it would clearly establish that (i) victim girl was sexually allowed to have been harassed or exploited by the petitioner – accused under the guise of proposed marriage; and, (ii) threatening her with photographs alleged to have been taken by the petitioner – accused and posing the threat of same being exposed in the social media . These two factors seems to have swayed in the mind of the complainant – victim girl to postpone lodging of complaint and it is also alleged by the prosecution that petitioner had promised to marry her and in the fond hope of getting married to petitioner and also in the light of threat being posed, she had not lodged the complaint. However, when the petitioner – accused threatened the victim girl that he would take away her life, same has resulted in filing of the complaint and as such, issue of delay in lodging the complaint would pale into insignificance. Even otherwise, it is a matter to be thrashed out or examined by the learned trial Judge after entire evidence would surface.
8. Be that as it may. Insofar as issue regarding age of the victim girl is concerned, heavy reliance has been placed by learned Advocate appearing for petitioner on the report of the Bowring and Lady Curzon Hospital, Bengaluru which is a radiological report, which would indicate that as on the date of her evaluation, she was around 21 years i.e., as on 12.09.2018. Complaint in question has been lodged on 24.11.2017 and victim girl has alleged that five years preceding the complaint, she has been raped by the petitioner. Hence, age of the victim girl has to be reckoned on the date when alleged incident took place.
9. Hon’ble Apex Court in the case of JAYA MALA referred to above, has held that Court should take judicial notice with regard to margin of error in age ascertained by the radiological evaluation i.e., two years on either side. Thus, when the date of complaint is taken as 24.11.2017 and her age as on the date of complaint according to radiological report being 20 years, age of victim of incident of rape would be 18 years even as on the last date of rape having been committed on the victim girl. That apart, victim girl has alleged that five years preceding to the complaint, she was consistently being raped. As to whether at the undisputed point of time i.e., 5 years prior to the complaint, she was raped or not is an issue which will have to be examined by the learned trial Judge after evaluating the evidence that may be tendered by the prosecution. As such, said contention also cannot be accepted and deserves to be rejected and it is rejected.
10. Insofar as contention that there being no rape on the victim girl cannot be accepted inasmuch as, medical report of the Doctor produced would primafacie indicate that there is “evidence of signs of recent sexual intercourse’.
11. For myriad reasons aforestated, I do not find any good ground to entertain this petition. Hence, it is rejected.
SD/- JUDGE *sp