IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 31ST DAY OF JANUARY, 2018 BEFORE THE HON’BLE MR.JUSTICE G. NARENDAR CRIMINAL PETITION No.10149/2017 Between:
Ravi Prakash S/o Surendra Thakur, Aged about 27 years, Occ. Waiter in Air Force, Mess No.2, R/at Air Force, New Servant, Quarters No.PH.8/12, Shivnagar, Bidar – 585 401.
(By Sri K.M.Ghate, Advocate) And:
The State of Karnataka, Through Sub-Inspector of Police, Women Police Station, Bidar – 585 401.
Rept. by State Public Prosecutor, High Court of Karnataka, Bengaluru – 560 001.
(By Sri Mallikarjun Shahukar, HCGP) ... Petitioner ... Respondent This Criminal Petition is filed under Section 438 of Criminal Procedure Code, 1973 praying to allow the petition and thereby direct the respondent police station to enlarge the petitioner on bail in the event of arrest in Crime No.36/2017, at Women Police Station, Bidar under Section 376, 504, 506 of IPC pending on the file of I Addl. JMFC Court, Bidar.
This petition coming on for Orders this day, the Court made the following:-
ORDER The petitioner is before this Court being aggrieved by the order of the trial Court passed in Crl.Misc.No.730/2017 dated 28.11.2017, rejecting the bail petition preferred by the petitioner under Section 438 of Cr.P.C. praying to enlarge him on bail in the event of his arrest by the respondent Police in Crime No.36/2017 registered for the offences punishable under Sections 504, 506 and 376 of IPC.
2. The case of the defacto complainant is that she is married woman and that marriage had taken place about 12 years ago with one Nagendra of Humnabad and that out of the marriage she had begotten two daughters. That on account of difference of opinion between them, the defacto complainant separated from her husband and two children and that after separation she started working as a waiter to serve food in functions and in due course she came in contact with the accused-petitioner who is also employed as a waiter in the mess runs by the Air Force.
3. That on 13.10.2017, when she was standing in Ambedkar Circle, the petitioner asked the defacto complainant to come to his house and accordingly she went to the house of the petitioner situated in Air Force New Servant Quarters No.PH.8/12, Shivnagar, Bidar. That upon her entering the house the accused locked the door and thereafter is said to have proceeded to push on her on to the bed which was not her wish and forced her clothes upward and forcibly raped her twice in succession. That the sexual act was without the consent and against her wishes. That after completing the act the petitioner abused and warned her of dire consequence, if she were to reveal the same to anybody. That the victim/complainant screams were to no avail as there was no one nearby and that after the act she walked out of the house and thereafter she met up her friends after discussing with them got typed the complaint and lodged a complaint with the respondent police at about 7.30 p.m.
4. Learned counsel for the petitioner would contend that the very fact that the victim has voluntarily entered the premise and has voluntarily exited the house of the accused, is sufficient ground to disbelieve the version as put out by the complainant. He would further contend that the very fact which renders the story of the complainant doubtful, is the assertion that despite her screams, no one came to her assistance as there were nobody in the near by building. He would further submit that the place of occurrence is a Air Force New Servant Quarters and all the neighboring apartments are occupied and this itself falsifies the version of the defacto complainant.
5. Per contra, the learned High Court Government Pleader would submit that the investigation is in progress and he would reiterate the contentions urged before the trial Court and would pray for rejecting the petition.
6. On a specific query the learned High Court Government Pleader would place on record the copy of the medical report by the Obstetrician and Gynecologist of Bidar Government Hospital. The victim was referred on same day at about 11.30 p.m. On perusal of the same it is seen that the age of the defact complainant is recorded as being between 20-21 years. It has been further observed that hymen is intact and on a preliminary pathological examination it does not show the evidence of spermatozoa in the smear studied. It is also noted that there is no evidence of blood stain, and sperm stains on the cloths. It is also noted that the examination has also not revealed any external injuries over any part of the body.
7. The learned counsel for the petitioner would contend that the petitioner’s marriage has been fixed and that on account of the said complaint the same is derailed and in fact he had placed on record the photos of engagement ceremony before the Court below. He would further contend that the petitioner is trying to take advantage of the situation and that the complaint is nothing but a black mail tactics adopted by the complainant for ulterior purpose.
8. From the above facts and circumstances, it is apparent that the victim who is a adult admits to have voluntarily visited the house of the petitioner who thereafter is said to have raped her. The narration in the complaint and medical examination report does not go hand in hand. Prima facie it appears that there has no been physical assault or physical aggression by the petitioner. The medical examination prima facie opines the spermatozoa smear test has not resulted in the evidence of sperm stains.. The medical examination does not even prima facie state that there has been a forcible rape. If that being the case keeping in view the fact that the wedding of the petitioner has been fixed, this Court is of the considered opinion that the petition warrants consideration. Accordingly, the petition is allowed.
9. The respondent-Police are hereby directed to release the petitioner/accused on bail, in the event of his arrest in Crime No.36/2017 at Women Police Station, Bidar for the offences punishable under Section 376, 504, 506 of IPC, subject to the following conditions :-
1. The petitioner shall execute a personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties for the likesum to the satisfaction of the arresting authority;
2. The petitioner shall not attempt to influence the prosecution witnesses directly or indirectly;
3. The petitioner shall not attempt to tamper with the evidence;
4. The petitioner shall not leave the jurisdiction of this Court without a prior permission of the jurisdictional Court;
5. The petitioner shall appear before the respondent police on every Sunday at 9.00 a.m. till the filing of the charge sheet.
The Trial Court shall not be influenced by the observations made by this Court in the disposal of the petition. The observations are made only for the purpose of disposal of this petition and the trial Court shall proceed with the trial without un-influenced by the observations made by this Court.
Petition is ordered accordingly.
Sd/- JUDGE sn