IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.5744/2018 BETWEEN:
RAGHAVENDRA @ KUMARA @ KOTHAMBARI KUMARA S/O. LATE GANGADHAR, AGED ABOUT 32 YEARS, NO.94, NEAR ANJANEYA TEMPLE, RAJAGOPALA NAGAR, BENGALURU-560 068.
...PETITIONER (BY SRI PRATHEEP K.C., ADVOCATE) AND:
THE STATE OF KARNATAKA REP. BY MADANAYAKANAHALLI POLICE STATION, BANGALORE RURAL DISTRICT, REP. BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE-560 001.
... RESPONDENT (BY SRI M.DIVAKAR MADDUR, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CRIMINAL PROCEDURE CODE PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.535/2017 OF MADANAYAKANAHALLY P.S., BANGALORE DISTRICT FOR THE OFFENCE P/U/S 323, 504, 506, 376D, 363 R/W 34 OF IPC AND SEC.3(2)(v) OF SC/ST (POA) ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The present petition has been filed by the petitioner/accused No.3 under Section 439 of Cr.P.C. praying this Court to release him on bail in Crime No.535/2017 of Madanayakanahally Police Station, for the offence punishable under Sections 323, 504, 376D, 363 read with 34 of IPC and Sections 3(2)(5) of SC and ST (Prevention of Attrocities) Act.
2. I have heard the learned counsel appearing for the petitioner and learned High Court Government Pleader for the respondent-State.
3. The gist of the complaint is that the complainant was working in a footwear shop and she got married with CW.6. The victim was acquainted with accused No.1 who is a auto-rickshaw driver. It is further stated in the complaint that accused No.1 used to call her and insist her to marry him. It is further alleged that on 16.11.2017 at about 10:00 a.m., when she was near Lakshmi cross road, accused No.1 came in auto- rickshaw, demanded her to marry him, when she refused, he abused her in a filthy language and as such, she slapped on his cheek and left the place. It is further alleged that on 16.11.2017, at about 07:00 p.m., when the victim and her husband–CW.6 were there in the house, accused Nos.1 to 3 came there, knocked the door and when she opened the door, all the three accused persons came inside the house, threatened the husband of the complainant, assaulted him and they snatched the mobile phones of both complainant and CW.6. Thereafter, all the accused committed rape on her and also they took the husband of the complainant in their auto-rickshaw and they posed life threat to CW.6. On the basis of the said complaint, a case came to be registered.
4. It is the submission of the learned counsel for the petitioner that accused No.3/petitioner is innocent and he has not committed any offence and already charge sheet is filed. Since more than one year, he is languishing in jail. He further submitted that accused No.1 was having close association with the victim. The victim was not knowing accused Nos.2 and 3, but in the complaint, names of accused Nos.2 and 3 is also mentioned. It creates a doubt that when the victim does not know the names of accused Nos.2 and 3, how the names of accused Nos.2 and 3 was reflected in the complaint. Further, there is a delay in filing the complaint. Though, the husband of the complainant was present in the house at the time of the alleged incident, he has not lodged any complaint. He went to his sister’s house and thereafter with deliberation, the complainant has registered the case. He draws the attention of the Court to the sketch of the scene of the offence and submitted that many houses have been situated nearby the house of the victim and the alleged incident took place around 07:15 p.m., and if she has made hue and cry, the neighbors would have come to her rescue or help her, from this aspect it is clear that no such incident has taken place. He further submits that the doctor who has examined the victim has clearly opined that seminal stains and evidence of signs of recent sexual intercourse are absent, which clearly indicates that there is no sexual assault committed by petitioner/accused No.3. He further submitted that he is ready to abide by any conditions and ready to offer sureties. On these grounds, he prayed to allow the petition and release the petitioner on bail.
5. Per contra, learned High Court Government Pleader for respondent-State vehemently argued and submitted that CW.6 is the husband of the victim and he is the eye witness to the alleged incident. He has been assaulted by the accused persons and thereafter the victim has been gang raped in the house of the victim. He further submitted that statement of victim fully corroborates the medical evidence and there are witness who have seen the accused going out of the house. He also further submits that there is prima facie material to connect accused No.3/petitioner for having involved in the heinous offence of gang rape. Under such circumstances, the petitioner is not entitled to be enlarged on bail. On these grounds, he prays to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and other materials, which have been produced in this behalf and also considered the submissions made by learned High Court Government Pleader for respondent-State.
7. On close reading of the complaint, it indicate that the victim was acquainted with accused No.1 and even earlier to the alleged incident, he used to come and forced to marry him and at that time she slapped on his cheek. Thereafter, on the same day evening, accused No.1 came along with accused Nos.2 and 3, they have assaulted CW.6/husband of the complainant and committed rape on her. The medical evidence which has been produced clearly indicate that she has been sexually assaulted. Even the injuries and physical appearance of the complainant mentioned in the medical records indicate that she has been sexually assaulted by the accused persons. Whether the petitioner/accused No.3 is involved in the alleged offence or not is a matter to be considered at the time of trial. Only because the neighbors have not come when the victim made hue and cry, the same is not a criteria at this juncture to consider the bail application. Prima facie, it clearly goes to show that this petitioner along with other accused persons have gang raped the victim and it is a serious offence.
8. In the said facts and circumstances of the case, I feel it is not a fit case to release the petitioner/accused No.3 on bail.
Hence, petition stands dismissed.
The Trial Court is directed to expedite the trial within six months from the date of receipt of a copy of this order.
SD/- JUDGE HJ