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IN THE HIGH COURT OF KARNATAKA BENCH AT DHARWAD
J.M. Khazi, J.
Tirupati – Appellant
Versus
State of Karnataka & Ors. – Respondents
Criminal Petition No. 100133 of 2023
Decided On : 01-03-2023
Bail - Criminal Procedure - Offences under IPC and POCSO Act - Denial of bail to accused - Allegations of sexual assault and murder - Prima facie material connecting accused with the alleged crime - Possibility of tampering with witnesses - Vulnerability of witnesses - Court's discretion to deny bail
Fact of the Case:
The petitioner, accused No.1, sought bail for offences under Sections 376(2)(i), 302, 201, 114 of IPC and Sections 4, 8 and 12 of POCSO Act. He contended that he was falsely implicated and there was no prima facie material to connect him to the alleged crime. The prosecution alleged that the deceased prosecutrix was brought outside the house in an unconscious state and later found dead due to asphyxia and compression over the neck.
Finding of the Court:
The court found prima facie material connecting the petitioner/accused No.1 with the alleged crime, including misbehavior with the deceased prosecutrix. It noted the vulnerability of witnesses and the possibility of tampering with them. Considering the nature of the allegations and the severity of the offences, the court denied bail to the petitioner/accused No.1.
Issues: Prima facie evidence connecting accused with the alleged crime, possibility of tampering with witnesses, vulnerability of witnesses, severity of the offences
Ratio Decidendi: The court has the discretion to deny bail when there is prima facie material connecting the accused with the alleged crime, and there is a possibility of tampering with witnesses, especially considering the vulnerability of the witnesses and the severity of the offences alleged.
Final Decision: The criminal petition for bail was rejected by the court.
JUDGMENT/ORDER
J.M. Khazi, J. - Petitioner who is arraigned as accused No.1 is before this Court under Section 439 of the Code of Criminal Procedure with a prayer to release him on bail for the offences punishable under Sections 376(2)(i), 302, 201, 114 of Indian Penal Code (for short, 'I.P.C.') and Sections 4, 8 and 12 of Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act').
2. The petitioner/accused No.1 has contended that he is no way involved in the alleged incident and he is falsely implicated. From the perusal of the statement of witnesses creates doubt as to his presence at the time of incident. There is no prima facie material to connect him to the alleged crime. Already accused No.2 to 5 have been granted bail. The petitioner/accused No.1 also stands on the same footing. The entire material placed on record are considered, there is nothing to connect the petitioner/ accused No.1 with the alleged crime. Investigation is completed and charge sheet is filed and therefore, his custodial presence is no longer required. He is in judicial custody since 19.04.2022. He is ready to abide by any conditions that may be imposed.
3. Learned High Court Government Pleader submitted oral objections contending that at the relevant point of time, deceased prosecutrix was aged 13 years. Petitioner/accused No.1 is no other than the uncle of Kumari Deepa, a friend of the prosecutrix and prosecutrix was in the habit of visiting her house. During such visits, petitioner/accused No.1 used to take liberties with her and two-three times, when accused No.2 misbehaved with her, both accused No.1 and 2 were warned.
3.1 On 17.04.2022 at 3.00 p.m., deceased prosecutrix visited the house of Kumari Deepa and while complainant, Hanamantappa Naik, Chandappa Geddageri and Gangappa Naik were having tea, they heard commotion and went to the house of Kumari Deepa. At that time, accused No.3-Chandappa Jinnapur, petitioner/accused No.1-Tirupati and accused No.2-Parasappa @ Basya brought the deceased prosecutrix from inside the house of accused No.2-Parasappa @ Basya and on enquiry, they along with accused No.4-Chandappa Ginnapur, his son accused No.4-Krishnappa Jinnapur and accused No.5-Chandravva Jinnapur said that the prosecutrix has suffered fits. However, the complainant found ligature mark on the neck and other injuries and prosecutrix was not in a position to speak. When she was taken to the hospital, the doctors declared her as brought dead. After completing detailed investigation, a charge sheet came to be filed against petitioner/accused No.1 and others which makes out a strong prima facie case. If he is released on bail, petitioner/accused No.1 may threaten or tamper the witnesses and thereby defeat the prosecution and prays to reject the petition.
4. Learned counsel for petitioner/accused No.1 submitted that there is no evidence with regard to the offence punishable under Section 376 I.P.C. The FSL report is negative. Already accused No.2 to 5 are released on bail and petitioner/accused No.1 is also entitled for the same benefit and prays to allow the petition.
5. Heard the arguments and perused the records.
6. It is the definite case of the prosecution that the niece of petitioner/accused No.1 by name Deepa is a friend of deceased prosecutrix and therefore, she used to visit her house and during such visits, he was in the habit of misbehaving with her. So also accused No.3-Chandappa Jinnapur was found misbehaving with the deceased at the sugarcane field and he was also warned two-three times. There is evidence of witnesses including Kumari Deepa that on the date of incident, deceased went inside the house of petitioner/accused No.2. However, after some time, she was brought outside the house by accused No.3 in an unconscious state, falsely representing that she suffered epilepsy.
7. Having found ligature mark on her neck, on suspicion complaint came to be lodged. The postmortem examination reveals that her death was due to as
The court has the discretion to deny bail when there is prima facie material connecting the accused with the alleged crime, and there is a possibility of tampering with witnesses, especially consider....
The court's decision was based on the strong prima facie case and the likelihood of the petitioner threatening and tampering with the witnesses, in line with the provisions of the POCSO Act.
The right of the accused to rebut the presumption of guilt under the POCSO Act and the importance of analyzing foundational facts to trigger the presumption.
Where judicial discretion to admit the petitioner on bail, is required to be exercised in his favour.
Inconsistent statements from the prosecutrix and lack of sufficient incriminating evidence justified the grant of bail to the accused, highlighting the necessity for a prima facie case for custody.
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Point of Law : POCSO – Grant of Bail - Love affair between the petitioner and the prosecutrix and their marriage is likely to take place in near future.
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