IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.9565 OF 2018 BETWEEN:
Naveena S/o.Late Balarama Aged 32 years Business, R/o Hakkipakki Camp, Shivamogga Taluk, Shivamogga District-577 201 ...Petitioner (By Sri.G.R.Praveen Kumar for Sri.Pruthvi Wodeyar, Advocate) AND:
State of Karnataka By Holehonnur Police Station, Bhadravathi Rural Circle, Shivamogga-577 201 Represented by the Public Prosecutor, High Court of Karnataka Bengaluru-560 001.
...Respondent (By Sri.K.P.Yoganna, HCGP) This Criminal Petition is filed under Section 438 of Cr.P.C praying to enlarge the petitioner on bail in the event of his arrest in crime No.396/2016 of Holehonnur Police Station, Shivamogga District for the offence punishable under Section 376(2)(n), 342, 354(A) 354(B),355, 506, 323 read with 34 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 by the petitioner-accused No.1 under Section 438 of Cr.P.C. seeking to release him on bail in the event of his arrest in Crime No.396/2018 of Holehonnur Police Station pending on the file of Additional Civil Judge (Jr.Dn) and JMFC-1 Court, Bhadravathi, Shivamogga District for the offences punishable under Section 376(2)(n), 342, 354, 354(A), 354(B), 355, 506, 323 read with 34 of IPC.
2. I have heard the learned counsel appearing for the petitioner-accused No.1 and also learned HCGP appearing for respondent-State.
3. The gist of the complaint is that petitioner- accused No.1 falsely promising her to marry, since two years, used to have a sexual act during night hours. When the same was brought to the knowledge of the elders, he abused the elders and relatives with foul language and also threatened her. Thereafter, again he called her to the church and committed rape on her and at that time, she was made nude and the nude recording was also done. It is further alleged that said sexual act was continued and on 19.11.2018 she informed the same to her parents. As she suffered with stomach ache and vomiting, she was taken to Surgi Hospital for abortion by petitioner. Later, she returned to her house and informed the same to the elders, who in turn informed the same to the villagers who said that they would settle the matter. The complainant was four months pregnant. At that time, the accused confined her, assaulted her and threatened her with dire consequence. On 20.11.2018, accused person called her to their place forcefully. When she went there, they harassed her, saying to abort the pregnancy and they would pay the amount how much she want. Under these circumstances, the complaint was filed.
4. It is the submission of learned counsel for the petitioner-accused No.1 that false complaint has been registered against the accused. The entire case of prosecution, if it is seen, is nothing but it was a consensual sexual act. He further submitted by relying upon the decision of the Hon’ble Apex Court in the case of Dr.Dhruvaram Murlidhar Sonar Vs. State of Maharastra and Ors. in Criminal Appeal No.1443/2018 arising out of S.L.P (Criminal) No.6532 of 2018 that the ingredients of 376 of IPC is not attracted if it is a consensual sexual act. He further submitted that there is a delay of two years in filing the complaint. He further submitted that on the alleged date when she was taken to the hospital, that day petitioner-accused was not there in the village and the records shows that he was in Bengaluru. That itself goes to show that false case has been registered as against the petitioner-accused. He further submitted that the petitioner-accused is ready to abide by the conditions imposed on him by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition.
5. Per contra, the learned HCGP vehemently argued and submitted that at the time when complaint was filed, the victim was eleven weeks pregnant and even the complaint and other records clearly goes to show that the accused-petitioner repeatedly threatened her and had sexual act. He also promised her to marry and even the complaint also shows that she was made nude and video was recorded of the said act. All these material clearly goes to show the active involvement of the accused-petitioner. He further submitted that investigation is still in progress. If at this juncture, the accused-petitioner is released on bail, he may tamper with prosecution evidence and interfere with fair investigation and also indulge in similar activities. Hence, prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submission made by the learned counsel for the petitioner and learned HCGP and also gone through the records in detail and the decision quoted by the learned counsel for the petitioner quoted supra. It is the contention of the complainant in the complaint that since two years the accused-petitioner used to have sex with her with one or the other pretext and also used to threaten her and used to have sexual act. No doubt that there is a delay in filing the complaint. But at this premature stage, that too, when the allegations are that the petitioner-accused has sexually assaulted the victim girl since two years and as a result of the same, she has become pregnant. Under such circumstances, the said delay cannot come in the way of taking the case. There is direct evidence and there is material to show that the accused is involved in heinous offence under Section 376(2)(n) of I.P.C. I have gone through the decision quoted by the learned counsel for the petitioner. The said decision is not applicable to the present facts of the case on hand. In the said case, charge sheet has been filed and quashing application has been filed and the same was rejected. Against the said order they went to Hon’ble Apex Court. Observations have been made. A close reading of Sections 376, 375 of I.P.C., together that though there is a consensual intercourse and promise to marry, if from the very initial stage accused has no intention to keep his promise, it amounts to rape. These facts can also be appreciated only at the time of trial and not at this premature stage. Though it is contended by the learned counsel for the petitioner that on the date when the victim was taken to the hospital, petitioner-accused was not there in the station and that it is plea of alibi. It is to be considered only at the time of trial. I am conscious of the fact that the present application has been filed under Section 438 of Cr.P.C to release the petitioner-accused on anticipatory bail. The anticipatory bail has to be exercised by using the Courts discretion. When there is material to show that petitioner-accused has sexually assaulted and whether it is a consensual sexual act or not is a matter which has to be considered and appreciated at the time when the full charge sheet is filed.
Under the above facts and circumstances, the petitioner has not made any grounds to exercise the power under Section 438 of Cr.P.C. Hence, petition stands dismissed.
Sd/- JUDGE ag