SHIVALINGAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the learned Counsel for the petitioner and the learned Additional State Public Prosecutor. The petitioner is the accused on the basis of a complaint lodged by one Shivamma. It is the case of the complainant that on 17-9-2012, the accused had called Shivamma to accompany him to Khedumarga Cross and the petitioner met her there and took her on his motor cycle and with the assurance of marriage, he asked her to accompany him to Aland. It transpires that she did go along with him to Aland and proceeded to Gulbarga in a bus and stayed in the house of a friend on 18-9-2012. It transpires that using the time when his friend was away, the accused is said to have committed rape on the complainant. Then again on 18-9-2012 at 12.00 noon, the accused had come to Aland in a bus and thereafter assured the complainant that he would speak to her parents about their proposed marriage. However, since he did not return and did not meet her parents, the complainant was aggrieved and therefore, had complained about the rape committed on her by the petitioner, on 19-12-2012. The police thereafter arrested the petitioner on 20-9-2012 and he was remanded to judicial custody by the concerned jurisdictional Court. The petitioner had approached the Court below seeking bail, which had been rejected by the order dated 20-10-2012 on the ground that the investigation was on and therefore, the bail petition was premature. Thereafter, upon the police filing the charge-sheet another bail petition was moved which has again been dismissed by an order dated 4-1-2013 on the finding that though there may have been consensual sex between the complainant and the accused, the fact that the complainant was 16 years old, would render the act a crime on the part of the accused and therefore, has held that there was prima facie material to deny bail to the petitioner as he was certainly involved in committing the offence. That order is produced now when the matter is taken up for orders.

(2.) The learned Additional State Public Prosecutor would seek time to file his statement of objections and would vehemently oppose the petition to contend that notwithstanding that there may have been consensual sex, going by the sequence of events and the delay in lodging the complaint, the act would certainly result in a crime as the complainant was a minor according to the radiological report and therefore, would be a serious offence which would visit the petitioner with stringent punishment and the petitioner being enlarged on bail, may put him out of the reach of the law and therefore, would oppose the bail petition.

(3.) The learned Counsel for the petitioner on the other hand would point out that the petitioner is a student who is to take up the PUC examination and he belongs to a respectable family. It is not denied that the petitioner and complainant are known to each other. But however, the petitioner having committed rape on the complainant is vehemently denied. The complainant obviously was peeved with the fact that the petitioner did not respond to her desire to get married to the petitioner and therefore, has been motivated to lodge a false complaint. It is denied that the complainant is a minor. There is no birth certificate that is produced to establish her age. It is on the basis of a radiological report that the age is sought to be claimed as 16. The report however would indicate that the age of the complainant can be anywhere between 16 to 18 years. Therefore, this is a matter to be established before the Court at the trial. However, the medical report that was procured on a physical examination of the complainant, would indicate that there were no injuries on the person of the complainant and that there was no sign of recent sexual activity, but however, it was found that the complainant was used to sexual activity and this would indeed require better evidence to bring home the charge, if at all, against the petitioner. Hence, the petitioner being incarcerated indefinitely at his young age would cause a serious impact on his mental state and therefore, till such time that the case is established beyond all reasonable doubt, the petitioner being kept in custody would result in a miscarriage of justice and hence, would seek enlargement of the petitioner on bail on such terms as the Court may impose. Given the above facts and circumstances, the sequence of events do not indicate a brutal attack and rape insofar as the complainant is concerned. The emphasis is on the fact that the complainant may be a minor and therefore, even if there was consensual sex, it would be rape going by the definition of the crime in law and hence, since the very age of the complainant would necessarily have to be established, it would be difficult to accept the radiological report as the final word that the complainant was a minor. Even the report is approximate, in that, it indicates that the complainant may be 16 to 18 years old. Therefore, to detain the petitioner in custody notwithstanding that there is an element of doubt as to the age of the complainant and which may even result in a different opinion of the Court after the trial, it is appropriate if the petitioner is enlarged on bail at this point of time. Accordingly, the petition is allowed: