Karnataka High Court
CRL.P/11901/2023 of K. LOHITH KUMAR Vs THE STATE OF KARNATAKA BY on 28 December 2023
2023:KHC:47047 CRL.P No. 11901 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF DECEMBER, 2023 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL PETITION NO. 11901 OF 2023 BETWEEN: K. LOHITH KUMAR, S/O. K. NAGARAJ, AGED ABOUT 20 YEARS, STUDENT, R/O.
Digitallysigned byGAYATHRI P GLocation: HighCourt ofKarnataka NC: 2023:KHC:47047CRL.P No. 11901 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28[TH] DAY OF DECEMBER, 2023
BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL PETITION NO. 11901 OF 2023
BETWEEN:
K. LOHITH KUMAR, S/O. K. NAGARAJ, AGED ABOUT 20 YEARS, STUDENT, R/O. HARIYAMMANAHALLI VILLAGE, HARAPANAHALLI TALUK, DAVANGERE DISTRICT - 583131, (ACCUSED NOW IN JUDICAL CUSTODY).
…PETITIONER
(BY SRI. S.G. RAJENDRA REDDY., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA BY MAYAKONDA POLICE STATION, DAVANAGERE DISTRICT, REPTD. BY S.P.P., HIGH COURT OF KARNATAKA, BENGALURU - 560001.
2. ERAMMA, W/O NAGARAJACHARI, AGE : 45 YEARS, GANGANAKATTE VILLAGE, DAVANAGERE TALUK AND DISTRICT PIN : 577 201.
…RESPONDENTS
(BY SRI.RAHUL RAI K., HCGP FOR R1;
VIDE ORDER DATED 13.12.2023, NOTICE TO R2 IS HELD SUFFICIENT.)
THIS CRL.P IS FILED U/S.439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.27/2023 OF MAYAKONDA P.S., DAVANAGERE FOR THE OFFENCES P/U/S.363, 376 OF IPC AND SECTION 4 AND 6 OF POCSO ACT, 2012, PENDING ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-I, DAVANAGERE IN SPL.C.NO.303/2023.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
In pursuance to the order dated 13.12.2023, learned High Court Government Pleader submits that the notice issued to respondent No.2 is served on her. However, respondent No.2 is called out, but, there is no representation.
2. The petitioner is the sole accused in Spl.C.No.303/2023 (Cr.No.27/2023) filed by the Mayakonda Police based on the complaint lodged by respondent No.2 Smt. Eramma that is the mother of the victim girl.
3. The factual matrix of the prosecution case is that the mother of the victim namely [REDACTED] lodged the missing complaint before the respondent - Police on 08.03.2023 alleging that her daughter was missing from
07.03.2023, the said complaint was registered in Cr.No.27/2023 for the offences punishable under Section 363 of IPC. Subsequently, the respondent - Police during the course of the investigation traced the victim girl and the petitioner on 17.04.2023 at Davangere and took them to the Police Station and recorded the statement of the victim girl and thereafter, the petitioner was arrested.
4. The respondent - Police after completion of the investigation, filed the charge-sheet for the offences punishable under Sections 363, 376 of IPC and Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') against the petitioner alleging that the victim girl came in contact with the petitioner when she went for repair of her mobile phone and thereafter, both of them developed love between them and both were in close relationship. The petitioner used to visit the college of the victim girl and pestering her to love him, even though she has refused for the same. When the parents of the victim girl were seeking a boy for her marriage, the same was intimated by the victim to the petitioner. On 07.03.2023, the petitioner called the victim girl near the KSRTC bus stand and thereafter, he took her to
Bengaluru, even though she was not interested. Subsequently, they both were in a rented house at Kodigehalli and stayed there upto 15.04.2023 during which period, it is alleged that the petitioner committed repeated sexual intercourse on her. Hence, the case registered against the petitioner.
5. Being aggrieved by the same, the petitioner approached the Additional District and Sessions Judge, FTSC-1, at Davangere for grant of bail in Spl.C.No.303/2023 which came to be dismissed vide order dated 31.08.2023. Hence, this petition is filed.
6. Heard the learned counsel for the petitioner and so also the learned HCGP for respondent No.1.
7. The contention of the learned counsel for the petitioner is that, the victim girl is a consenting party and as per the medical report, the doctor has certified that she is 16 to 18 years of age. As such, the offence under the provisions of POCSO Act and under Section 376 of IPC does not attract in this case. He further contends that at any stretch of imagination, it cannot be said that the accused forcibly kidnapped the victim girl when they were in love for a considerable period. He would also contend that the statement under Section 164 of Cr.P.C., given by the victim girl before the Magistrate dated 17.04.2023, she has totally denied the incident. However, after lapse of two months that is on 01.06.2023, the respondent - Police once again recorded the Section 164 statement, wherein, she stated that she has mistakenly given her earlier statement dated 17.04.2023. Hence, according to the learned counsel for the petitioner, there is contradiction given by the victim girl before the Magistrate. Hence, he prays to allow the petition.
8. Per-contra, the learned HCGP vehemently opposed the bail application on the ground that the subsequent statement given by the victim girl under Section 164 of Cr.P.C. before the Magistrate, she categorically stated that the accused forcibly kidnapped her and committed rape on her. In such circumstances, the victim girl being minor aged about 16 years, the bail application cannot be entertained.
9. On careful perusal of the statement given by the victim girl dated 17.04.2023 before the Magistrate, she clearly stated that she left the house and stayed in her friend's house namely one Aishwarya at Bengaluru for a period of 20 days for the reason that her parents were forcing her to marry. Though the respondent-police recorded the subsequent statement before the Magistrate, after lapse of two months, she has contradicted her earlier statement in it. In such circumstances, the veracity of the statement of the victim girl has to be tested in the trial.
10. In view of the above, without expressing any opinion on the merits of the case. I am of the considered view that the petitioner may be released on bail. Accordingly, I pass the following:
ORDER
i.The petition is allowed.
ii.The petitioner is enlarged on bail in Spl.C.No.303/2023 (Cr.No.27/2023) pending on the file of Additional District and Sessions Judge, FTSC-Spl.C.No.303/2023 (Cr.No.27/2023) pending on the file of Additional District and Sessions Judge, FTSC- 1, Davangere, subject to following conditions:
1) The petitioner shall execute personal bond for a sum of Rs.1,00,000/- (one lakh) with two sureties for the likesum, to the satisfaction of the jurisdictional Court; sum of Rs.1,00,000/- (one lakh) with two sureties for the likesum, to the satisfaction of the jurisdictional Court;
2) The petitioner shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons; of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons;
3) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses; threaten or tamper with the prosecution witnesses;
4) The petitioner shall not involve in similar offences in future; future;
5) The petitioner shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against him is disposed off. Trial Court without permission of the said Court until the case registered against him is disposed off.
Sd/-
JUDG
MCR