IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.9637 OF 2018 BETWEEN:
Javed S/o Mohammed Yousuf, Aged about 30 years, R/o Flat No.35, Padmavathi Nagara, Site No.3, Burrabanda, Hyderabad, Telangana State – 500 018. ...Petitioner (By Sri. C.H. Jadhav, Senior Counsel for Sri. K. Ram Singh, Advocate) AND:
State of Karnataka By Ashoknagara Police Station, Bengaluru – 560 050.
Rep. by State Public Prosecutor, High Court Building, Bengaluru – 560 001. ...Respondent (By Sri. M. Divakar Maddur, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.277/2018 (C.C. No.58908/2018) of Ashoknagar Police Station, Bengaluru for the offence punishable under Sections 448, 342, 376, 377 and 506 of IPC.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R The present petition has been filed under Section 439 of Cr.P.C. praying to release the petitioner/accused on bail in Crime No.277/2018 (C.C. No.58908/2018) of Ashoknagar Police Station for the offence punishable under Sections 448, 342, 376, 377 and 506 of IPC.
2. I have heard the learned Senior Counsel Sri.C.H.Jadhav, appearing for the petitioner and Sri. M. Divakar, learned HCGP appearing for the respondent-State.
3. The gist of the complaint is that victim is a daughter of Sri. Rafiq Mohammed Sayyed. She alone went to the flat at about 7.30 a.m., to vacate the same and when she was at home, at that time, the petitioner/accused went inside the said house, locked the door and went near her and caught hold her hands and pulled her forcefully towards him, blocked her mouth, pulled her hairs and bent her forcefully. Thereafter, he removed her clothes and forcefully committed a sexual assault on her. It is further stated in the complaint that she was also sexually assaulted in unnatural manner and he repeatedly raped her about two hours, then she found him stressful, planned to escape from his clutches, went to washroom and called her friend and owner. When her friend came, she did not said anything etc., Thereafter the owner also came and at about 7.45 p.m., she filed a complaint against the petitioner.
4. It is the submission of learned Senior Counsel appearing for the petitioner that petitioner and victim are neighbors and they were known to each other. He further submits that the alleged incident has taken place at about 7.30 a.m., the owner came to the flat at about 1.30 p.m. and the complaint was registered at about 7.45 p.m. There is a delay of 12 hours in filing the complaint. He further by drawing the attention of the Court to mahazar submits that there are no symptoms or evidence to show that the bed has been scuttled. He further submitted that no seminal stains were found either on the clothes of the accused or the victim. He further by relying upon the decision in the case of Basavaraja Vs. State by Holenarasipura Town Police, Hassan District reported in 2017 (2) KCCR 1562 submitted that when there are no seminal stains and the FSL reports do not support the case of the prosecution, then under such circumstances, the accused is entitled to be released on bail. He further submitted that complainant was working in a pub and they were having friendship with each other and when the accused was in the house of complainant, discussions, deliberations and bargaining have taken place. Only because of that reason, the complaint was not lodged immediately. He further submitted that she does not disclose the fact immediately either to the owner or to the police when the incident has taken place as alleged by the complainant. He further submits even the complaint discloses the fact that on the same day, she was intending to vacate the said premises and by considering the said fact, the conduct of the victim clearly disclose the fact that they were having relationship and friendship and as such, immediately she does not disclose the said fact. He further submitted that there is no prima-facie material to connect the accused, the accused is entitled to be released on bail. He further submitted that he is ready to abide by conditions imposed by this Court and ready to offer sureties if he is released on bail. On these grounds, he prayed to allow the petition and release the petitioner/accused on bail.
5. Per contra, learned HCGP vehemently argued and submitted that complaint and 164 statement of the victim clearly go to show that the petitioner/accused has repeatedly committed sexual assault including unnatural sex on the victim. He further submitted that on the same day, the victim was examined by the Medical Officer and the medical report discloses the fact that the victim has suffered with injuries and they have also connected with the sexual act. He further submitted that the statement of the owner of the flat and her friends also reveals and corroborates the statement of the victim. He further submitted that the petitioner/accused threatened the victim and he continuously sexually assaulted her and even the mahazar was drawn, the clothes of the accused were also there in the house of the victim and same have been seized, that itself clearly goes to show that the accused/petitioner sexually assaulted the victim. He further submitted that there is a prima-facie material as against the accused/petitioner for having sexually assaulted the victim. There are no good grounds to release the petitioner/accused on bail. If petitioner/accused is released on bail, he may abscond and may not be available for the trial. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submission made by the learned counsel appearing for both the parties and perused the records.
7. As could be seen from the contents of the complaint and other materials, it is alleged in the complaint that the alleged incident has taken place at about 7.30 a.m. on 27.07.2018 and as could be seen from the medical records the victim has been examined on the same day and on examination of the victim, it has been found with five injuries that is:
a) Abrasion on left face b) Linear abrasion in lower margin of jans on left side c) Three abrasion on right breast d) Two abrasion on left breast and e) Abrasion on the middle of right thigh, which was red in colour and tenderness.
8. Though it is contended during the course of arguments that no seminal stains were found on the clothes of both accused as well as victim, but as on today FSL report has not yet been received and the examination and the opinion has been kept open.
9. I have gone through the decision quoted by the learned counsel in the case of Basavaraja (quoted supra). By taking into consideration the factual situation existing in the present case, it appears that the victim has sexually assaulted by the accused including unnatural sex for a long time and injuries found over the body of the victim also discloses the said aspect. Statement of the victim under Section 164 of Cr.P.C. and complaint also clearly disclose that the accused/petitioner has sexually assaulted. That itself is sufficient to come to the conclusion that accused/petitioner has sexually assaulted the victim against her will. When a rape has taken place against the will, itself sufficient to constitute the offence under Section 376 of IPC. Though several contentions have been raised by the learned Senior Counsel they were friends and some bargaining has taken place, no prima- facie material is there on record. All these aspects can be considered at the time of trial. At this pre-matured stage, it cannot be held it was consensual sex, that too, she had filed the complaint immediately on the same day and the medical records also corroborates the statement of the victim and the complaint.
10. Under the said facts and circumstances of the case, I am of the considered opinion that it is not a fit case to release the petitioner/accused on bail.
Accordingly, petition stands dismissed.
Learned Sessions Judge is directed to expeditiously hold the trial.
Sd/- JUDGE MBM