- 1 - NC: 2025:KHC-D:1062 CRL.P No. 102268 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO.102268 OF 2024 BETWEEN: SAHADEV S/O. BASAPPA CHAVARAD, AGE: 34 YEARS, OCC. COOLIE, R/O. CHIKKAMALLIGAWAD, TQ/DIST. DHARWAD. … PETITIONER (BY SRI BASAVARAJ K. MATHAPATI, ADVOCATE) AND: 1. THE STATE OF KARNATAKA THROUGH DHARWAD RURAL POLICE STATION REP BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD. 2. SMT. SHANTAVVA W/O. NAGARAJ KURABET, AGE: 37 YEARS, OCC. HOUSEWIFE, R/O. CHIKKAMALLIGAWAD-580007, TQ/DIST. DHARWAD. … RESPONDENTS (BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1; R2- NOTICE SERVED) THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C., SEEKING TO ALLOW THIS CRIMINAL PETITION AND ENLARGE THE PETITIONER/ACCUSED WHO IS ARRESTED FOR THE OFFENCE PUNISHABLE U/S 376(2)(N), 506 OF IPC AND U/S 5(L), 6 OF THE POCSO ACT IN SPL.SC.NO.87/2023 BEFORE THE II ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD AND CR.NO.240/2023 IN DHARWAD RURAL POLICE STATION, IN THE INTEREST OF JUSTICE AND EQUITY. MANJANNA E Digitally signed by MANJANNA E Date: 2025.01.22 10:42:44 +0530 - 2 - NC: 2025:KHC-D:1062 CRL.P No. 102268 of 2024 THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 16.01.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY THE COURT, MADE THE FOLLOWING: CAV ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) This petition is filed by accused (petitioner) under Section 439 of Code of Criminal Procedure, 1973 (‘CrPC’ for short) for grant of regular bail in Crime no.240/2023 of Dharwad Rural Police Station for offences punishable under Sections 376 (2) (n) and 506 of Indian Penal Code, 1860 (‘IPC’ for short) and Sections 5 (l) and 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’ for short). 2. Sri Basavaraj K. Mathapati, learned counsel for petitioner submitted prosecution case was that on 29.09.2023 at 8.00 a.m., complaint was filed by Smt.Shantavva W/o Nagaraj Kurabet that when her daughter (victim) was suffering from stomach ache and taken to District Hospital, Dharwad, she was found to be five months’ pregnant. On enquiry, victim revealed that at 7.00 p.m. on 16.02.2023, when victim was home alone, petitioner came there told her that he liked her since long and intended to marry her and asked her to have sexual intercourse with him. When she refused, he threatened - 3 - NC: 2025:KHC-D:1062 CRL.P No. 102268 of 2024 to kill her and her family members and thereafter had forcible sexual intercourse with her. He also threatened against revealing same to anyone. Likewise he had sexual intercourse with her repeatedly and that he had also taken her on his motorcycle to Mango Grove in IIT compound and had sexual intercourse with her there. Due to fear, she had not disclosed same to anybody and sought for taking action. Based on said complaint, Crime no.240/2023 was registered by Dharwad Rural Police Station for offences punishable under Sections 376 (2) (n) and 506 of IPC and Sections 5 (l) and 6 of POSCO. 3. It was submitted, date of incident was 16.02.2023 whereas complaint was filed on 29.09.2023 after delay of seven months without proper explanation. It was submitted, in her statement recorded under Section 164 of CrPC, victim stated that on 16.02.2023 at 7:00 p.m., petitioner had sexual intercourse with her under threat and that he had also taken her to Mango Grove near IIT compound and that he had got her mobile phone. It was submitted, in her statement recorded during counseling at District Child Protection Unit on 03.10.2023, she stated that she was studying in IX Std. at Konanatambigi Government High School, Haveri, while - 4 - NC: 2025:KHC-D:1062 CRL.P No. 102268 of 2024 petitioner was from Chikkamalligawad, whom she was acquainted with since Aiyappa Swamy pooja previous year. When he had expressed his love and interest towards her, she had said yes. Same would indicate that sexual intercourse between them was with consent. 4. It was submitted petitioner was arrested on 30.09.2023. It was further submitted, health condition of petitioner’s parents was precarious, while his old aged father was taking treatment at DIMHANS, Dharwad, his mother was suffering from paralysis and completely bed-ridden. Therefore, petitioner required to attend to them. It was submitted, prosecution had completed investigation and filed charge-sheet on 10.11.2023, wherein 30 witnesses were cited. It was submitted, matter was thus pending and awaiting commencement of trial. Conclusion of same was likely to be delayed. In support of his submission, learned counsel relied on decision of High Court of Bombay in Bail Application no.3372/2021 disposed of on 15.11.2022. 5. It was submitted, in said matter, charge-sheet material indicated victim was capable of understanding consequences of her act and voluntarily accompanied/joined - 5 - NC: 2025:KHC-D:1062 CRL.P No. 102268 of 2024 applicant, admitted she was in love with him, question whether she consented for sexual intercourse would be matter of evidence and fact that she had kept quiet until her WhatsApp chat was objected to by her family members and that completion of trial may take considerable time, were taken into account for granting bail. Since presence of petitioner for custodial interrogation was not necessary and petitioner was in jail as undertrial for more than one year, was not justified and sought for allowing bail petition on any conditions, which would be complied with. 6. On other hand, Smt.Girija S. Hiremath, learned HCGP for respondent no.1 - State opposed petition. She submitted incident occurred on 16.02.2023 and thereafter. complaint was filed on 29.09.2023. School records of victim would indicate her date of birth as 24.02.2009. Thus, her age as on date of incident would be 13 years 11 months and 23 days, whereas petitioner was 33 years of age. In his statement recorded under Section 161 of CrPC, petitioner had admitted to having sexual intercourse with victim at her house and also near IIT compound, by threatening her. It was further - 6 - NC: 2025:KHC-D:1062 CRL.P No. 102268 of 2024 submitted, DNA test report obtained by prosecution would indicate that child born to victim was from petitioner. 7. Referring to material produced along with memo dated 20.11.2024, it was submitted, petitioner had a brother Vitthal working as lineman, in family of petitioner, and there was not much substance in seeking for bail on ground of ill- health of parents. On above grounds sought for dismissal of bail petition. 8. Heard learned counsel and perused material on record. Though notice served to respondent no.2, remained absent. 9. From above, point that arises for consideration is: “Whether petitioner is entitled for regular bail with conditions?” 10. This petition is for grant of regular bail, wherein petitioner is alleged to have committed offences under POCSO as mentioned above. 11. While considering application for bail in cases involving offences under POCSO Act, Hon’ble High Court of Delhi in case of Dharmendra Singh v. The State (Govt of - 7 - NC: 2025:KHC-D:1062 CRL.P No. 102268 of 2024 NCT Delhi) reported in 2020 SCC Online Delhi 1267, identified several factors to be taken into account while consideration applications for bail as follows: “77. Though the heinousness of the offence alleged will beget the length of sentence after trial, in order to give due weightage to the intent and purpose of the Legislature in engrafting section 29 in this special statute to protect children from sexual offences, while deciding a bail plea at the post- charge stage, in addition to the nature and quality of the evidence before it, the court would also factor in certain real life considerations, illustrated below, which would tilt the balance against or in favour of the accused: a. the age of the minor victim : the younger the victim, the more heinous the offence alleged; b. the age of the accused : the older the accused, the more heinous the offence alleged; c. the comparative age of the victim and the accused : the more their age difference, the more the element of perversion in the offence alleged; d. the familial relationship, if any, between the victim and the accused : the closer such relationship, the more odious the offence alleged; e. whether the offence alleged involved threat, intimidation, violence and/or brutality; f. the conduct of the accused after the offence, as alleged; g. whether the offence was repeated against the victim; or whether the accused is a repeat offender under the POCSO Act or otherwise; - 8 - NC: 2025:KHC-D:1062 CRL.P No. 102268 of 2024 h. whether the victim and the accused are so placed that the accused would have easy access to the victim, if enlarged on bail : the more the access, greater the reservation in granting bail; i. the comparative social standing of the victim and the accused : this would give insight into whether the accused is in a dominating position to subvert the trial; j. whether the offence alleged was perpetrated when the victim and the accused were at an age of innocence : an innocent, though unholy, physical alliance may be looked at with less severity; k. whether it appears there was tacit approval-in- fact, though not consent-in-law, for the offence alleged; l. whether the offence alleged was committed alone or along with other persons, acting in a group or otherwise; m. other similar real-life considerations.” (emphasis in original) 12. On a prima facie analysis of material available, age of petitioner is 33 years, while that of victim was 13 years 11 months and 23 days. As a result of sexual intercourse, victim became pregnant and has given birth to child. DNA test results would implicate petitioner. Petitioner and victim are from same village and from same caste. In her statement recorded under Section 164 of CrPC, victim has stated that petitioner had sexual intercourse with her after she refused, under threat of - 9 - NC: 2025:KHC-D:1062 CRL.P No. 102268 of 2024 her life and that of her family members. Petitioner is alleged to have had repeated sexual intercourse with minor victim leading to her pregnancy. Though case of tacit approval is attempted to be made out, relying on statement of victim recorded during counseling, legal position regarding consent insofar as offences alleged under POCSO is settled by Hon'ble Supreme Court in case of Independent Thought v. Union of India, reported in 2017 (10) SCC 800, wherein it held consent of victim would be irrelevant where she was aged below 18 years. After lodging of complaint, petitioner was apprehended at Bus stand, when he was trying to flee away. Moreover, petitioner is stated to be a coolie. Hence, there would be likelihood of his fleeing justice. 13. Material produced by prosecution that his father was merely scanned at DIMHANS and did not avail any treatment as well as presence of a brother available to take care of them would explain away plea for bail on medical condition of parents. 14. Though, absence of criminal antecedents, filing of charge-sheet and proceedings awaiting commencement of trial with prosecution citing 30 witnesses would favour consideration, fact that petitioner aged 33 years is alleged to - 10 - NC: 2025:KHC-D:1062 CRL.P No. 102268 of 2024 have had forced sexual intercourse with victim a minor aged less than 14 years (13 years 11 months and 23 days) would eliminate possibility of acts alleged to have occurred at age of innocence. On other hand, they would be indicative of certain extent of perversion. Further, petitioner and victim hailing from same village and caste would aggravate claim for bail by petitioner as same would open possibility of petitioner influencing prosecution witnesses. In view of above, point for consideration is answered in negative. 15. Hence, following: ORDER Petition is dismissed. It is however, clarified that observations made herein are on prima facie consideration of material at this stage and should not be taken into account while passing final judgment by trial Court and same to be based on consideration of material adduced during trial. SD/- (RAVI V.HOSMANI) JUDGE GRD,EM CT:PA LIST NO.: 1 SL NO.: 51