IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION No.2911/2019 BETWEEN:
Naveena, S/o.Late.Balarama, Aged about 32 years, Occ:Agricultural Coolie, R/o.Hakki Pikki Camp, Hasudi Post, Bhadravathi Taluka, District Shivamogga-577 222.
(By Sri. Danappa P. Panibhate, Advocate) AND:
The State of Karnataka By Holehonnur Police Station, Bhadravathi Rural Circle, Shivamogga District – 577 227.
(By Sri. K. Nageshwarappa, HCGP) ... Petitioner ... Respondent This Criminal Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Crime No.396/2018 of Holehonnur P.S., Shivamogga for the offence p/u/s 376(2)(n), 342, 354, 354A, 354B, 355, 506, 323 read with Section 34 of IPC.
This petition coming on for Orders, this day, the Court made the following:
O R D E R This petition has been filed by the petitioner- accused No.1 under Section 439 of Cr.P.C., to enlarge him on bail in Crime No.396/2018 of Holehonnur Police Station for the offences punishable under Sections 376(2)(n), 342, 354, 354(A), 354(B), 355, 506, 323 r/w Section 34 of IPC.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State.
3. The genesis of the complaint is that the 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 the 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 and 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 the learned counsel for the petitioner-accused No.1 that the petitioner- accused No.1 is innocent, married and having wife and children. It is his further submission that as per the contents of the complaint, she has been sexually assaulted in a church, which is a holy place and there is no question of he taking her in the church and sexually assaulting her. It is his further submission that it is the case of the complainant that she has been got aborted by the accused but actually, it is the father of the complainant, who got her aborted. It is his further submission that the petitioner-accused No.1 is languishing in jail and already the charge-sheet has been filed and he is not required for the purpose of further investigation or interrogation. He is ready to abide by the conditions imposed on him by this Court and ready to offer the sureties. On these grounds, he prayed to allow the petition and to release the petitioner-accused No.1 on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the petitioner-accused No.1 approached this Court in Criminal Petition No.9565/2018 and this Court has discussed the matter in detail and thereafter, anticipatory bail has been rejected. It is his further submission that the complainant has specifically stated that for 11 weeks, the petitioner-accused No.1 has sexually assaulted her and she became pregnant. The petitioner-accused No.1 has repeatedly threatened her and sexually assaulted her by falsely promising her to marry. This act shows that the petitioner-accused No.1 was not intending to marry and has sexually assaulted the complainant. It is his further submission that at the time of sexual assault, he has also made audio and video recording and the police have seized the mobile phone of the accused. All these materials clearly go to show that the petitioner-accused No.1 is involved in a serious offence of sexual assault as against the complainant. It is his further submission that there is ample material as against the petitioner-accused No.1. 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 both the parties and perused the records.
7. On close reading of the contents of the complaint indicates that since two years, the petitioner- accused No.1 used to have a sex with the complainant by falsely promising her to marry and subsequently, he has also recorded the nude photographs of the victim and has sexually assaulted her. Even the records also show that subsequently she has become pregnant and she has undergone abortion. When the petitioner- accused No.1 by falsely promising without there being any intention from the inception, committed sexual assault on the complainant under such circumstance, the provisions of Section 375 of IPC is attracted. Though he is married, giving assurance to the victim that he is going to marry her shows that it is a false promise. Though it is contended by the learned counsel for the petitioner that there is a delay in filing the complaint, but he has not committed the sexual assault and as on the date, he was not there at the place of the alleged incident and he was at Bengaluru by occupying a lodge that is the matter, which has to be considered and appreciated only at the time of trial. It is nothing but taking a plea of alibi. If a plea of alibi is there, the petitioner/accused No.1, who has to prove that he was not present at the time of alleged date, but as could be seen from the records, the petitioner-accused No.1 has to not only sexually assaulted on 19.11.2018 but earlier to the alleged incident also, he was having sexual intercourse with the complainant. Under such circumstances, the submission of the learned counsel for the petitioner-accused No.1 that on 19.11.2018, he was not there in the said village and he was at Bengaluru by occupying a lodge, is also not acceptable. Looking from any angle, there is a material to show that the petitioner-accused No.1 is involved in a serious offence of sexual assault on the complainant. Under such circumstance, the petition is liable to be dismissed. Accordingly, it is dismissed.
Sd/- JUDGE VBS CT:RG