IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.8258/2018 BETWEEN:
Sri Abdul Latheef S/o Asan Aged about 47 years, Residing at 3-2/1, Kaikamba, Mangaluru Taluk – 574151.
(By Sri Shishira Amarnath, Advocate) AND:
State of Karnataka Represented by Inspector of Police Bajpe Police, Bajpe Taluk, Mangaluru District – 574142.
(By Sri M. Divakar Maddur, HCGP) …Petitioner ...Respondent This Criminal Petition is filed under Section 438 of the Code of the Criminal Procedure Code praying to enlarge the petitioner on bail in the event of his arrest in Crime No.202/2017 of Bajpe Police Station, Mangaluru City for the offences punishable under Sections 376 and 506 of IPC and Section 8 and 4 of POCSO ACT, 2012 in Crl.Misc.No.939/2017 dated 05.09.2017 before II Additional District and Sessions Judge, D.K. Mangaluru.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R This petition is filed by the petitioner-accused No.1 under Section 438 of Cr.P.C. to enlarge him on bail in the event of his arrest in Crime No.202/2017 of Bajpe Police Station for the offences punishable under Sections 376 and 506 of IPC and Sections 8 and 4 of Protection of Children from Sexual Offences Act.
2. I have heard the learned counsel for the petitioner-accused and learned High Court Government Pleader for the respondent-State.
3. The genesis of the complaint is that since November 2016, the victim girl was working in Fathima Dress Collection shop belonging to petitioner-accused No.1, where he used to misbehave with the victim girl by touching her body and when she objected, he used to scold her to work properly, otherwise she is going to be terminated. In the month of April 2017, when the victim was working, she was suffering with severe headache. At that time, petitioner-accused No.1 came to know about this and by saying that he would bring some medicine, he went out of the shop and brought juice and tablet. After taking the tablet she felt giddiness and she went to the dressing room in the shop and slept there. When she got up from her sleep, she noticed her chudidar pant had been brought down and the top had been lifted and she was having a pain in her private part, chest and other parts of the body. When she requested to grant leave, petitioner-accused No.1 refused and thereafter, she was also coming to attend the work. After two days petitioner-accused No.1 came near the victim girl and enquired about her health and asked her to sleep in the dressing room, then she told him that she is healthy and she would not sleep. Accused No.1 threatened her stating that if she would not sleep in the dressing room, he would show the video to everybody which he has already recorded in his mobile and thereafter, she slept in the dressing room and he committed sexual assault on her. By coming to know about the said matter, the victim got frightened with fear she did not disclose the said fact to anybody. Petitioner-accused No.1 has committed sexual assault on her four to five times and he threatened her that if she discloses the said matter to anybody, she would not be spared alive. Worried about the said fact, she did not disclose the said matter to anybody. One day, when accused No.2 had came to the shop who is also a partner of the said shop, she disclosed the matter to her and she also requested not to disclose the matter to anybody as the reputation of the shop is also involved and she promised that in future such things will not happen. Because of the sexual assault committed by petitioner-accused No.1, she became pregnant and she came to know that she is pregnant of four months. Subsequently, the said matter was disclosed to the parents and thereafter, a complaint was registered.
4. It is the submission of the learned counsel for the petitioner-accused No.1 that already accused No.2 is enlarged on bail and on the ground of parity, petitioner- accused No.1 is also entitled to be released on bail. It is his further submission that petitioner-accused No.1 is a big business man and he has not committed the alleged offence, he was not staying at Bajpe. He used to stay in Kerala looking after the tipper business where his physical presence is very much necessary. It is his further submission that only with an intention to extract the money from petitioner-accused No.1, the victim has registered the false complaint and there is no prima-facie material as against the petitioner-accused No.1 to connect the alleged crime. It is his further submission that though the alleged incident has taken place in the month of April 2017, she has neither disclosed the said fact to her family members nor she has filed the complaint before the Police, there is a inordinate delay in filing the complaint. It is his further submission that the victim has also got married to some other person and now she has delivered a baby. Even the DNA test has also not been produced by the Police to substantiate the fact that it is the petitioner-accused No.1 who has sexually assaulted her. He has further submitted that petitioner-accused No.1 is ready to cooperate with the prosecution and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner-accused No.1 on bail.
5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the victim was working in the shop of petitioner- accused No.1, under the guise of providing juice and tablet which he gave to her and when she became unconscious she has been trapped and she has been sexually assaulted. It is his further submission that he has recorded the video in his mobile phone and thereafter, he has given threat to her that he is going to exhibit the said video if she tells anybody and thereafter, again he had sex with victim for four to five times and as a result of the same, she became pregnant. The DNA test has to be conducted, but the petitioner- accused No.1 is not available for the purpose of investigation to collect the blood sample and send it to DNA test. It is his further submission that 164 statement also clearly goes to show that the petitioner- accused No.1 has sexually assaulted the victim and as a result of the same, she has pregnant. It is his further submission that because of the threat given by the petitioner-accused No.1 she has not disclosed the same and when it was disclosed to accused No.2, she also suppressed the said fact. On these grounds, he 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. Though it is contended by the learned counsel for the petitioner-accused No.1 that he was not present at Bajpe and he was stayed in Kerala by conducting a Tipper business which is a matter which has to be considered and appreciated only at the time of trial. That too the said contention is a plea of alibi, so the heavy burden lies upon the petitioner-accused No.1 to establish the same. The material and contents of the complaint, 164 statement discloses the fact that the petitioner-accused No.1 has sexually assaulted the minor girl and even he has videographed the same and the said case has been registered in the year 2017 and the petitioner-accused No.1 is not available for the purpose of either collecting the video clippings which he has recorded in his mobile phone nor for the purpose of collecting blood for conducting DNA test.
8. Without expressing anything on merits of the case, I feel that it is not a fit case to exercise the powers under Section 438 of Cr.P.C. to enlarge him on bail. In that light, the petition stands dismissed.
However, liberty is given to petitioner-accused No.1, if he surrender before the concerned Police or the Court and thereafter, he can revive this application for regular bail, in accordance with law.
I.A.No.2/2018 does not survive for consideration, the same is disposed of.
Sd/-
JUDGE GJM