IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL BETWEEN:
Karigowda CRIMINAL PETITION No.8397/2018 @ Battery Papanna S/o Bukaiah @ Ningaiah Aged about 31 years R/at C/o Puttathayamma Rent House, 4th Cross Tavaregere, Venkatagirikote Village, Mandya City-578 182.
(By Sri Basavaraj S. Sappannavar, Advocate) AND:
State of Karnataka by Mandya East Police Station Represented by State Public Prosecutor High Court of Karnataka Bengaluru-560 001.
…Petitioner (By Smt. Namitha Mahesh B.G., HCGP; Notice served on Complainant) …Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.104/2018 of Mandya East Police Station, Mandya, for the offences punishable under Sections 376, 506, 312 of IPC and Section 3(1)(r), 3(1)(s) and 3(1)(w) of SC/ST (Prevention of Atrocities) Act.
This Criminal Petition coming on for Orders this day, the Court made the following:-
O R D E R Though notice has been issued to the complainant through police, she remained absent.
The present petition has been filed by the petitioner/ accused under Section 439 of Cr.P.C. to release him on bail in Crime No.104/2018 of Mandya East Police Station for the offences punishable under Sections 376, 506, 312 of Indian Penal Code and also under Section 3(1)(r), 3(1)(s), 3(1)(w) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 2015.
2. I have heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
3. The gist of the complaint is that the complainant victim belongs to Scheduled Tribe, she was employee in the battery shop of accused for a salary of Rs.5,000/- per month. While so working, accused was not paying the salary on time and she used to work till 8.00 p.m. On 7.9.2017 at about 1.00 p.m. accused gave some drink with sleeping tablets and she became unconscious and at that time petitioner/accused sexually assaulted her. When she woke up she was shocked that she was nude and on enquiry accused told that he has committed rape on her and has also recorded the entire act and threatened her that if she informs the alleged incident to anybody or if she did not come to his shop he will upload the recorded video in Facebook and Whatsapp. Subsequently he also threatened that if he calls, she has to come and co-operate with him for the sexual act. Subsequently the victim became pregnant. When the same was informed to accused, he gave her some tablets for abortion, which in turn, victim’s health deteriorated and she was admitted to the hospital without any concern towards her. On the basis of the scanning report it reveals that she is 7½ months’ pregnant and subsequently on 14.6.2018 she gave birth to a male child and the child died on 15.6.2018. On the basis of the complaint a case has been registered.
4. It is the submission of the learned counsel for the petitioner/accused that already charge sheet has been filed and the body of the baby was not subjected to post mortem report. He further submitted that the victim was major and she has not informed the said fact to anybody. That itself clearly goes to show that it is a consensual sex with the petitioner/accused. He further submitted that the statement of the complainant has not reveals the fact that the accused has often had sexual act with her. Then under such circumstances it can be said that it is a consensual sex. In order to substantiate the fact that it is a consensual sex he further referred to the other statement of the victim. He further submitted that by relying upon the decisions in the case of i) Yashwanth K.Y. Vs. State by Nonavinakere Police Station, ii) The State of Karnataka by Adugodi Police Station Vs. Anthonidas, iii) Vipin Vijayan Vs. The State of Karnataka by Chikkajala Police Station submitted that if consensual sex is there, then under such circumstances the petitioner/accused is entitled to be released on bail. On these grounds he prayed to allow the petition and to release the petitioner/accused on bail.
5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the victim was working as an employee with the accused and on the alleged date of incident the petitioner/accused intoxicated the victim by giving the juice and in the said juice he has mixed the sleeping tablets and thereafter she has been sexually assaulted. She further submitted that the victim has been threatened and thereafter she has been repeatedly sexually assaulted and as a result of the same she became pregnant and thereafter the petitioner/accused has given tablets and the health condition of the victim was deteriorated and she was taken to the hospital and scanning was done and it was confirmed that she was carrying and she delivered the male child and subsequently the child died. She further submitted that the conduct of the accused if it is perused clearly goes to show that it is not a consensual sex, he has forcibly had sexual act with the victim. She further submitted that the DNA report is yet awaited. Under the said facts and circumstances the petitioner/accused is not entitled to be released on bail. On these grounds, she prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. As could be seen from the records the conduct of the accused and the complaint if it is perused, the complaint itself clearly goes to show that the victim was working in the battery shop of the petitioner/accused. On 7.9.2017 the accused gave the cold drink by mixing the sleeping tablets and when the complainant consumed the same she became unconscious and at that time the accused committed sexual assault on her. That itself clearly goes to show that there was no consent of the victim in having a sexual act. It is well settled proposition of law in Anurag Soni Vs. State of Chhattisgarh in Criminal Appeal No.629/2019 by the Hon’ble Apex Court that whenever a sexual assault is committed against the will of the prosecutrix, then under such circumstances it attracts the provision of Section 376 of IPC and it amounts to rape. Under the said facts and circumstances the said act of the petitioner/accused if it is perused with reference to the conduct of the victim, it is not considered to be a consensual sex and as such the said ground is not available to the petitioner/accused.
8. Under the said facts and circumstances the above said decisions quoted by the learned counsel for the petitioner/accused does not apply to the present facts of the case on hand. In that light, the petitioner has not made out any good ground to release him on bail.
Hence, the petition stands dismissed.
Sd/- JUDGE *AP/-